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Law360 (September 4, 2020, 5:03 PM EDT ) The U.S. Department of Labor is readying an update to its rules for granting paid leave under the Families First Coronavirus Response Act after a New York federal judge struck down parts of the existing regulation, according to a new federal budget office posting.
The DOL sent the revised rule to the Office of Management and Budget for review Thursday. The DOL can release the rule once it's cleared by the OMB's Office of Information and Regulatory Affairs.
The OMB listing does not describe the contents of the rule, which is expected to answer questions stemming from U.S. District Judge Paul Oetken's August ruling that the DOL exceeded its authority in parts of the initial April rule.
Congress passed FFCRA as COVID-19 cases surged in March, requiring most employers with fewer than 500 workers to provide up to two weeks of paid sick time and as many as 12 weeks of paid family leave when workers can't work for reasons tied to the virus.
The law provides workers two weeks — up to 80 hours — off at full pay if they're sick or have to quarantine, and the same allotment at partial pay if workers have to care for sick family members or homebound children. The law also provides two weeks of unpaid time off followed by 10 weeks at partial pay to workers who can't work because their child's school or day care provider has closed.
The DOL released its FFCRA rule in early April, setting standards for implementing the emergency paid leave mandate and attempting to resolve ambiguities in the law's text. In addition to fleshing out the eligibility triggers, the rule clarified exemptions for small businesses and health care employers and limited the availability of "intermittent leave," in which workers take only a few hours or days of their allotment at a time.
But Judge Oetken said the DOL didn't justify parts of the regulation in an August ruling granting partial summary judgment to the state of New York, which sued to expand the rule. Judge Oetken said the DOL excluded too many workers when it said the "health care provider" exemption blocks leave for "anyone employed at" a doctor's office, hospital, medical school or a number of other facilities, and by saying employers don't have to give leave when they "do ... not have work" for the requesting worker.
Judge Oetken also said the DOL unreasonably narrowed the law when it said workers can take intermittent leave only by agreement with their employers, and vacated a requirement that workers provide documentation attesting to their need for leave before they can take time off.
Squire Patton Boggs LLP attorney Laura Lawless said she's hopeful the new rule clarifies intermittent leave eligibility, which is "really pertinent right now as we're heading back into the back-to-school season." Although the original rule left intermittent leave up to employers' discretion, that conflicts with recent guidance on the DOL website directing employers to give workers time off to care for kids whose schools use hybrid learning models, in which kids learn at school on some days and at home on others, Lawless said.
"If you're not taking leave on the other days [when kids are at school], they must be tacitly acknowledging that intermittent leave has to be provided," said Lawless, who advises employers. "I think the regulation has to catch up with the evolution of the informal guidance."
The new rule may also resolve questions about the scope of Judge Oetken's ruling, Lawless said. While some attorneys are acting as if the decision applies only to New York, the Phoenix-based lawyer said she's "taken a more conservative approach" and advised acting to adhere to the judge's findings rather than the DOL's.
"For employers who are reluctant to provide intermittent leave, for example, I've been strongly encouraging them to do so because I think there are inconsistencies in the statute, and the judge is correct," she said.
A DOL representative did not say Friday what the new rule contains or provide an anticipated timeline for releasing it.
--Editing by Stephen Berg.
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