The U.S. Department of Labor (DOL) recently issued more guidance for employers and workers related to rights and responsibilities under federal leave and wage and hour laws related to the current COVID-19 pandemic.
Updates were made to guidance for the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA). Highlights of the updates are included below.
Fair Labor Standards Act (FLSA):
Q: I am an employer who allows my employees to telework during the COVID-19 emergency. Now that my employees are no longer at my worksite, how do I determine their hours of compensable work? Do I have to pay my employees for hours I did not authorize them to work? Do I have to pay them for hours worked even when they do not report those hours?
A: Work performed away from the primary worksite, including at the employee’s home, is treated the same as work performed at the primary worksite for purposes of compensability. Therefore, you must compensate your employees for all hours of telework actually performed away from the primary worksite, including overtime work, in accordance with the FLSA, provided that you knew or had reason to believe the work was performed. This is true even of hours of telework that you did not authorize. You also must compensate your employee for unreported hours of telework that you know or have reason to believe had been performed. However, you are not required to compensate your employees for unreported hours of telework that you have no reason to believe had been performed, i.e., where you neither knew nor should have known about the unreported hours. In most cases, you may satisfy your obligation to compensate your teleworking employee by providing reasonable time-reporting procedures and compensating that employee for all reported hours.
Q: I am an employer who allows my employees to telework during the COVID-19 emergency. I would also like to give my employees flexibility in hours of work so they can take time out of the normal workday for personal and family obligations, such as caring for their children whose schools have closed. If I allow my employees to begin work, take several hours in the middle of the workday to care for their children, and then return to work, do I have to compensate them for all of the hours between starting work and finishing work?
A: No. Under WHD’s broadly applicable regulation and its continuous workday guidance, all time between the performance of the first and last principal activities of a workday is generally compensable work time. However, the Department recognized that applying this guidance to teleworking arrangement would discourage needed flexibility during the COVID-19 emergency. As such, the Department stated in the Families First Coronavirus Relief Act rulemaking that an employer that allows employees to telework with flexible hours during the COVID-19 emergency does not need to count as hours worked all the time between an employee’s first and last principal activities in a workday. For example, assume you and your employee agree to a telework schedule of 7-9 am, 11:30-3pm, and 7-9 pm on weekdays. This allows your employee, for instance, to help teach their children whose schools are closed, reserving for work times when there are fewer distractions. Of course, you must compensate your employee for all hours actually worked – 7.5 hours – that day, but not all 14 hours between your employee’s first principal activity at 7 a.m. and last at 9 p.m.
Q: Can a salaried executive, administrative, or professional employee who is exempt from the Fair Labor Standards Act’s (FLSA’s) minimum wage and overtime requirements under Section 13(a)(1) perform other nonexempt duties during the COVID-19 public health emergency and continue to be treated as exempt?
A: Yes, during the period of a public health emergency declared by a Federal, State, or local authority with respect to COVID-19, otherwise-exempt employees may temporarily perform non-exempt duties that are required by the emergency without losing the exemption. WHD’s regulations permit an employee who otherwise qualifies for a Section 13(a)(1) exemption to perform nonexempt duties during emergencies that “threaten the safety of employees, a cessation of operations or serious damage to the employer’s property” and which are beyond the employer’s control and could not reasonably be anticipated. COVID-19 is a rare event affecting the public welfare of the entire nation that an employer could not reasonably anticipate and is consistent with the FLSA’s regulatory criteria for emergencies. Employees who are temporarily required to perform nonexempt duties due to COVID-19 may do so without losing the FLSA exemption, as long as they continue to be paid on a salary basis of at least $684 per week.
Q: Is hazard pay required under the Fair Labor Standards Act (FLSA) for employees working during the COVID-19 pandemic?
A: No. The FLSA does not require hazard pay; FLSA generally requires only payment of at least the federal minimum wage (currently $7.25 per hour) for each hour worked and overtime compensation for each hour over 40 worked in a workweek in the amount of at least one and a half times the employee’s regular rate of pay. Issues such as hazard pay are usually determined privately between employers and employees or their authorized representatives. State or local laws may also impose other obligations.
Q: I am a salaried employee exempt from the minimum wage and overtime pay requirements under Section 13(a)(1) of the Fair Labor Standards Act (FLSA) as a bona fide executive, administration, or professional employee. Will I lose my exempt status if I take leave under the Families First Coronavirus Response Act (FFCRA)?
A: No, taking paid sick leave or expanded family and medical leave will not affect your status or eligibility for any exemption from the FLSA’s minimum wage and overtime requirements. For example, if you take paid sick leave or expanded family and medical leave on an intermittent basis, doing so will not be construed as undermining your being paid on a salary basis for purposes of the exemptions under FLSA Section 13(a)(1) and the regulations at 29 CFR Part 541.
Q: I am a salaried employee exempt from the minimum wage and overtime requirements under Section 13(a)(1) of the Fair Labor Standards Act (FLSA) as a bona fide executive, administration, or professional employee. Can my employer reduce my salary during the COVID-19 pandemic or an economic slowdown? Would I lose my exempt status if my employer does?
A: Generally, an employer may prospectively reduce the amount regularly paid to a salaried exempt employee like you for economic reasons related to COVID-19 or a related economic slowdown. However, any such reduction must be predetermined rather than an after-the-fact deduction from your salary based on your employer’s day-to-day or week-to-week needs. Moreover, any such salary change must also be bona fide, meaning the change is not an attempt to evade the salary basis requirements and is actually because of COVID-19 or an economic slowdown as opposed to the quantity or quality of work you performed. If your employer properly reduces your salary under these conditions and requirements, you will not lose your exempt status, as long as you still receive on a salary basis at least $684 per week.
Family and Medical Leave Act (FMLA):
Q: Due to safety and health concerns related to COVID-19, many health care providers are treating patients for a variety of conditions, including those unrelated to COVID-19, via telemedicine. Telemedicine involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices. Under these circumstances, will a telemedicine visit count as an in-person visit to establish a serious health condition under the FMLA?
A: Yes. Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits, and will consider electronic signatures to be signatures, for purposes of establishing a serious health condition under the FMLA. To be considered an in-person visit, the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities. This approach serves the public’s interest because health care facilities and clinicians around the nation are under advisories to prioritize urgent and emergency visits and procedures and to preserve staff personal protective equipment and patient-care supplies.
Q: I was out on FMLA leave unrelated to COVID_19. While I was out, my company implemented a new policy requiring everyone to take a COVID-19 test before they come to the office. Under the FMLA, can my employer require me to get a COVID-19 test under this policy?
A: The FMLA does not prohibit the employer’s testing requirement. When your FMLA leave is over, your employer must reinstate you to the same job or an equivalent position. However, you are not protected from actions that would have affected you if you were not on FMLA leave. For example, if a shift has been eliminated, or overtime has been decreased, you would not be entitled to return to work that shift or the original overtime hours. That principle also applies here, where your employer’s requirement for testing isn’t related to your having been out on FMLA leave but instead, all employees, regardless of whether they have taken any kind of leave, are required to be tested for COVID-19 before coming to the office. Other laws may impose restrictions on the circumstances when your employer can require COVID-19 testing, and what types of tests are permitted.
Families First Coronavirus Response Act (FFCRA):
Q: I was working full time for my employer and used two weeks (80 hours) of paid sick leave under the FFCRA before I was furloughed. My employer said I could go back to work next week. Can I use paid sick leave under the FFCRA again after I go back to work?
A: No. Employees are limited to a total of 80 hours of paid sick leave under the FFCRA. If you had taken fewer than 80 hours of paid sick leave before the furlough, you would be entitled to use the remaining hours after the furlough if you had a qualifying reason to do so.
Q: I have an employee who used four weeks of expanded family and medical leave before she was furloughed. Now I am re-opening my business. When my employee comes back to work, if she still needs to care for her child because her child care provider is unavailable for COVID-related reasons, how much expanded family and medical leave does she have available?
A: Under the FFCRA, your employee is entitled to up to 12 weeks of expanded family and medical leave. She used four weeks of that leave before she was furloughed, and the weeks that she was furloughed do not count as time on leave. When she returns from furlough, she will be eligible for eight additional weeks of leave if she has a qualifying reason to take it.
Because the reason your employee needs leave may have changed during the furlough, you should treat a post-furlough request for expanded family and medical leave as a new leave request and have her give you the appropriate documentation related to the reason she currently needs leave. For example, before the furlough, she may have needed leave because her child’s school was closed, but she might need it now because her child’s summer camp is closed due to COVID-19-related reasons.
Q: My business was closed due to my state’s COVID-19 quarantine order. I furloughed all my employees. The quarantine order was lifted and I am returning employees to work. Can I extend my former employee’s furlough because he would need to take FFCRA Leave to care for his child if he is called back to work?
A: No. Employers may not discriminate or retaliate against employees (or prospective employees) for exercising or attempting to exercise their right to take leave under the FFCRA. If your employee’s need to care for his child qualifies for FFCRA leave, whether paid sick leave or expanded family and medical leave, he has a right to take that leave until he has used all of it. You may not use his request for leave (or your assumption that he would make such a request) as a negative factor in an employment decision, such as a decision as to which employees to recall from furlough.