As the COVID-19 pandemic continues, employers find themselves facing new challenges. Recognizing that the “new norm” has led to workplace circumstances not previously considered, the U.S. Department of Labor issued new guidance to address several wage and hour and leave-related scenarios employers may face. Highlights from the new guidance include:
Fair Labor Standards Act (FLSA) Guidance
- Employees must be compensated for all hours worked via teleworking. Work performed away from the primary worksite is compensable in the same manner as work performed at the worksite. This is true even though the employer has less oversight of work performed from other locations (such as the employee’s home), and applies even if the work is not authorized. Employers are required to compensate employees for all hours reported to the employer and all hours the employer knows or has reason to believe were worked by an employee. This rule applies both to regular hours and overtime. An employer may implement rules prohibiting employees from working unauthorized hours and may discipline an employee for violating such rules, but the hours worked are still compensable. The DOL recommends employers impose reasonable time-reporting procedures to minimize problems in this area.
- Employees need not be compensated for time spent tending to personal matters during the workday. The COVID-19 pandemic has created a number of issues, in particular for non-exempt employees/parents of school-aged children. While the Wage and Hour Division generally considers the time between an employee’s “first and last principal task” to be compensable, this rule is relaxed to allow non-exempt employees and employers to agree to more flexible schedules that allow employees time to care for, teach and otherwise tend to children who need such attention during the workday. Employees must only be compensated for time actually spent working. This rule similarly applies if an employee takes time out during the workday to tend to other personal matters unrelated to children.
- Pandemic-specific rules for salaried, exempt employees. During a period of national emergency, such as COVID-19, certain rules applicable to salaried employees who are exempt from the overtime rules are relaxed. During the pandemic, exempt employees may temporarily perform non-exempt duties due to COVID-19 without losing their exempt status. Separately, employers may reduce an exempt employee’s salary so long as it is done (1) prospectively (i.e. not current, but subsequent pay period, (2) is in writing; (3) the employee’s weekly salary remains above $684; and (4) the reduction is the result of the pandemic or economic slowdown. The DOL also made clear that exempt employees will not lose their exempt status as a result of the exempt employee taking paid sick leave and expanded family and medical leave pursuant to the Families First Coronavirus Recovery Act.
Family and Medical Leave Act (FMLA) Guidance
- Telehealth visits with a health care provider may satisfy the FMLA’s requirement of an in-person visit for purposes of determining a “serious health condition.” For now, this guidance applies only through Dec. 31, 2020. The telehealth visit must include an examination, evaluation or treatment.
Families First Coronavirus Response Act (FFCRA) Guidance
- The FFCRA paid sick leave and expanded FMLA requirements are cumulative for 2020. If an employee uses their 80 hours of paid sick leave, is subsequently furloughed, returns to work and a need arises for additional sick leave, the employee is not entitled to additional paid leave under the FFCRA. Similarly, if an employee used six weeks of expanded FMLA during the spring of 2020 and needs additional leave in the fall because a child’s school or daycare is closed, the employee is entitled only to the amount of leave remaining (i.e. six weeks), not a renewed amount.
- Employers cannot extend an employee’s furlough because the employee may qualify for leave under the FFCRA. An employer that is recalling employees from furlough may not extend an employee’s furlough because that employee may need leave under the FFCRA. For example, if an employee being recalled from furlough has a child whose school or daycare is closed, the employer cannot extend the furlough to avoid providing the employee with paid FFCRA leave.
- Employers may require an employee to telework or provide a negative COVID-19 test before returning from an FFCRA leave, provided that the requirement is uniformly applied, and not only applied to employees who take FFCRA leave. For example, an employee requests two weeks of paid leave under the FFCRA to care for a family member who tested positive for COVID-19. Upon conclusion of the employee’s two weeks of paid leave, the employer may require the employee to provide a negative COVID-19 test or telework for a period of time only if the employer requires all employees to provide a negative COVID-19 test or telework for a period of time following exposure to someone who tested positive for COVID-19. If the rule is uniformly applied, it complies with the law. If it is applied only to employees who take FFCRA leave, then the rule violates the law.
Our Employment & Labor Practice Group attorneys are continuously monitoring developments and are available to answer questions related to COVID-19’s many effects on employers.