On September 3, 2020, the DOL sent a revised proposed rule regarding paid leave under the Families First Coronavirus Response Act (FFCRA) to the Office of Management and Budget for its review, according to an OMB posting. Though the OMB posting does not disclose the proposed rule’s contents, it is widely believed that the DOL issued the proposed rule in response to a recent federal district court decision striking down several provisions of the DOL’s existing final rule on the FFCRA.
In early August, after a challenge by the State of New York, Judge J. Paul Oetken of the US District Court for the Southern District of New York vacated the DOL’s existing rule to the extent it requires an employee to secure employer consent for intermittent leave-which may be an urgent issue now for employers as employees try to work around remote students’ schedules. The judge also vacated three other provisions of the DOL’s final rule: the work-availability requirement, the definition of “health care provider,” and the requirement that documentation be provided to the employer before the employee takes leave.
In the underlying litigation, the plaintiff State of New York did not seek a nationwide injunction, and the district court left the scope of its decision undefined, creating confusion as employers and employees who aren’t otherwise subject to New York law wondered if and how the order changed the application of the DOL’s final rule to them. The DOL’s revised rule may help to resolve some of that confusion.
The DOL can release the rule once it has been cleared by the OMB’s Office of Information and Regulatory Affairs. Follow us for updates, and for help navigating this or other employment issues, contact your Baker McKenzie employment attorney.