On July 20, 2020, the U.S. Department of Labor’s Wage and Hour division (WHD) published additional guidance, providing new responses to frequently asked questions on how the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA) affect employers and employees as workplaces reopen amid the COVID-19 pandemic.
Fair Labor Standards Act
The new guidance addressed several questions about how employees should be compensated in compliance with the FLSA.
- Teleworking Employees
The WHD clarified that work performed while teleworking at the employee’s home is treated the same as work performed at the primary worksite for purposes of compensability. Accordingly, employers must compensate employees for all hours of telework actually performed, including overtime or unreported hours, provided they knew or had reason to believe the work was performed. This even includes hours of telework that the employer did not authorize. The WHD encourages employers to provide reasonable time-reporting procedures and to compensate employees for all reported hours.
Additionally, recognizing the need for increased work-schedule flexibility during the COVID-19 emergency, the WHD relaxed its broadly applicable regulation and continuous workday guidance, holding that employers that permit employees to telework with flexible hours during the COVID-19 emergency to care for personal and family obligations during the workday do not need to count all of the time between the employee’s first and last principal activities in a workday as compensable hours worked, only the hours actually worked.
- Exempt Employees
During the period of a public health emergency declared by a Federal, State, or local authority with respect to COVID-19, otherwise-exempt employees who are temporarily required to perform nonexempt duties that are required by the emergency may do so without losing the FLSA exemption, as long as they continue to be paid on a salary basis of least $684 per week.
The guidance also made clear that salaried employees exempt under the FLSA would not lose their exempt status for taking paid sick leave or expanded family and medical leave—specifically, that taking such leave on an intermittent basis does not undermine the employee’s being paid on a salary basis for the purposes of the exemptions.
Finally, the WHD held that employers may prospectively reduce the amount regularly paid to a salaried exempt employee during the COVID-19 pandemic or an economic slowdown without jeopardizing the employee’s exempt status, as long as the employee still receives at least $684 per week on a salary basis, the reduction is predetermined, and the reduction is a bona fide change necessitated by the COVID-19 pandemic or the economic slowdown, rather than an after-the-fact deduction tracking the quantity or quality of work the employee performed.
- Hazard Pay
The WHD clarified that the FLSA does not require hazard pay for employees working during the COVID-19 pandemic.
Family and Medical Leave Act
Recognizing the increased demands on health care facilities and physicians during the COVID-19 pandemic, the WHD held that until December 31, 2020 it will consider telemedicine visits (i.e., remote video conference treatment of patients) to be in-person visits for purposes of establishing a serious health condition under the FMLA, as long as the telemedicine visit: (a) includes an examination, evaluation, or treatment by a healthcare provider; (b) is performed by video conference; and (c) is permitted and accepted by state licensing authorities.
Additionally, employers may require an employee returning from FMLA leave to take a COVID-19 test before returning to the office, even if the employee’s FMLA leave was unrelated to COVID-19, provided the testing requirement applies equally to all employees regardless of whether they have taken any kind of leave.
Families First Coronavirus Response Act
The WHD advised how employers should handle employees returning to work after taking FFCRA paid sick leave to care for a family member who was advised by a health care provider to self-quarantine because of symptoms of COVID-19. Generally, an employee returning from paid sick leave under FFCRA has a right to be restored to the same or an equivalent position. However, in consideration of the public health emergency, employers who are concerned about an employee returning to work too soon and potentially exposing other staff to COVID-19 may temporarily reinstate the employee to an equivalent position requiring less interaction with co-workers or require that they telework.
Additionally, employers may require that employees comply with any job requirements unrelated to having been out on paid sick leave. For example, employers may implement a company-wide policy requiring all employees who know they have interacted with a COVID-infected person, regardless of whether they took FFCRA leave, to telework or take leave until they have tested negative for COVID-19 infection. Employers may not, however, target employees to telework or be tested for COVID-19 simply because the employee took leave under the FFCRA.
The WHD also clarified how employers should handle employee requests for FFCRA leave when returning from furlough.
- Paid Sick Leave
The WHD restated that employees are limited to a total of 80 hours of paid sick leave under the FFCRA. Accordingly, employees who used all 80 hours of paid sick leave under the FFCRA before furlough would not be permitted to take additional FFCRA paid sick leave after returning to work, but employees who used fewer than 80 hours of paid sick leave before furlough would be entitled to use the remaining hours after furlough, provided they have a qualifying reason to do so.
- Expanded Family and Medical Leave
Employees are limited to a total of up to 12 weeks of expanded family and medical leave under the FFCRA. The WHD clarified that time spent out of work on furlough does not count as time on leave for the purposes of the 12-week cap, so an employee who took fewer than 12 weeks of expanded family and medical leave before furlough would be eligible to take the remainder of the leave if they have a qualifying reason to take it.
The WHD advised that employers should treat a post-furlough request for expanded family and medical leave as a new leave request, as the reason the employee requests leave may have changed during furlough, and should obtain appropriate documentation to support the new request.
- FFCRA Leave to Care for a Child
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 an employee’s need for leave to care for a child qualifies for FFCRA leave, he or she must be permitted to take such leave until he or she has used all of it. Employers may not use an employee’s request for leave, or an assumption that the employee would make a request, as a negative factor in an employment decision, such as a decision as to which employees to recall from furlough.
The WHD’s updated FAQs supplements its other published compliance assistance materials, including: a Fact Sheet for Employees; a Fact Sheet for Employers; a Questions and Answers resource about paid sick and expanded family and medical leave under the FFCRA; guidance posters that fulfill FFCRA notice requirements (one for federal workers and one for all other employees); and a Quick Benefits Tips tool to assist employers in determining much paid leave the FFCRA allows workers to take.
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If you have any questions regarding reopening under federal or state reopening guidance, please contact Anne C. Patin at (212) 574-1516, Julia C. Spivack at (212) 574-1373 or your relationship partner at the Firm.