As we have previously reported, the United States Department of Labor (DOL) continues to update its COVID-19 guidance. Most recently, on July 20, 2020, the DOL issued additional Q and A guidance related to COVID-19 and the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA). These latest publications not only offer new guidance, but also update prior DOL guidance.
The latest FLSA guidance addresses compensable time and exempt status issues as they relate to telework, as well as hazard pay (or the lack thereof under federal law).
The guidance explains that telework is treated the same as work performed at the employer’s primary worksite for purposes of determining compensability of time for non-exempt employees. This means that employers must compensate non-exempt employees for all hours of telework actually performed, including overtime work, if the employer knows or has reason to believe the work was performed. This includes time spent teleworking that the employer did not authorize, as well as working time that is not reported by an employee, so long as the employer “has reason to believe” the work occurred. As such, employers should ensure that their procedures include non-exempt employee-submission of weekly time records (including the employee’s certification of accuracy), and ensure non-exempt employees are informed of proper time reporting procedures, advised that “working off the clock” is a violation of the employer’s policies, and reviewing those policies to ensure that include warnings that failure to comply may result in discipline up to and including discharge.
The guidance also addresses the subject of the “continuous workday rule,” which is a principle under the FLSA whereby all time between the first and last principal activity of the day is generally considered compensable work time for non-exempt employees (with the exception of meal or rest breaks of 30 minutes or more). In recognition of the challenges faced by many employees in juggling work and family needs during the pandemic, some employers have allowed teleworking employees to stop work for periods throughout the day to care for personal and family obligations. The guidance makes clear that employers who provide this flexibility do not need to count all the time between an employee’s first and last principal activities in a workday as hours, but rather only must compensate employees for all hours actually worked in a given day.
With respect to exempt employees, the guidance clarifies that taking paid sick leave or expanded FMLA leave under the FFCRA will not affect an employee’s exempt status. Additionally, during a declared public health emergency, employees who are otherwise exempt may temporarily perform non-exempt duties that are required by the emergency and still maintain their exempt status, provided such employees continue to be paid on a salary basis of at least $684 per week. However, the guidance makes clear that an employer may prospectively reduce exempt employees’ salaries for economic reasons related to COVID-19 or a related economic slowdown so long as those reductions are pre-determined and bona fide. Put another way, employers cannot implement after-the-fact deductions from an employee’s salary based on the employer’s fluctuating employment needs or do so in an attempt to evade salary requirements or as a result of the quality of the work performed.
Regarding hazard pay, the guidance confirms the FLSA does not require hazard pay for employees working during the pandemic. However, state and local laws, as well as private agreements between employers and employees, may impose other increased pay obligations as a result of the pandemic.
The newest COVID-19 guidance regarding the FMLA states that until December 31, 2020, telemedicine visits will be considered to be in-person visits for purposes of establishing a serious health condition under the FMLA, provided the visit (1) includes an examination, evaluation, or treatment by a health care provider; (2) is performed by video conference; and (3) is permitted and accepted by state licensing authorities. Electronic signatures are deemed to be signatures for the same purpose of establishing a serious health condition under the FMLA.
The guidance also notes the FMLA does not prohibit an employer from requiring an employee to get a COVID-19 test prior to returning to the office after FMLA leave, pursuant to a policy requiring all employees obtain such a test, even if the policy was implemented while the employee was out on FMLA leave. However, other laws may restrict employers from requiring certain testing – namely, the Americans with Disabilities Act (ADA) requires that any mandatory medical test (including a COVID-19 test) be “job related and consistent with business necessity.” As set forth in the EEOC’s guidance, employers may take steps to determine if employees entering the workplace have COVID-19 (including the administration of COVID-19 testing) because an individual with the virus will pose a direct threat to the health of others. However, in light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees.
The DOL also published additional FFCRA guidance, which provides that employers may require employees returning from FFCRA leave to telework, be assigned to a different position, or take additional leave until they have tested negative for COVID-19 – provided such measures are applied uniformly and not just because the employee took FFCRA leave. In general, employees returning from leave taken under the FFCRA must be reinstated to the same or an equivalent position, subject to limited exceptions. However, given the public health emergency, where an employee has had potential exposure to an individual with COVID-19, employers can temporarily reinstate returning employees to equivalent positions which require less interaction with co-workers, or require they telework – provided they take similar measures for similarly affected employees who did not take FFCRA leave. . Employers may also require any employee that knows they’ve interacted with someone diagnosed with COVID-19 to telework or take leave until they test negative for COVID-19, regardless of whether that employee has taken any kind of leave. Employers may not, however, require employees to telework or be tested for COVID-19 simply because they took leave under the FFCRA.
The guidance clarifies that if an employee exhausts their paid sick leave under the FFCRA prior to being furloughed, they are not entitled to any additional leave if they ultimately return to work. Employees who use fewer than 80 hours of paid sick leave prior to being furloughed may use any remaining hours after returning to work. The same is true for expanded FMLA leave under the FFCRA: employees may take a portion of their expanded family and medical leave prior to being furloughed and use any remaining leave after returning to work, as the weeks that the employee was furloughed do not count as time on FFCRA leave. Because the reason an employee needs leave may have changed during furlough, the guidance suggests treating a post-furlough request for expanded family and medical leave as a new leave request, and obtain documentation related to the current reason for leave.
The guidance also reminds employers that they may not discriminate against employees or prospective employees for exercising their rights to leave under the FFCRA (including, for example, extending an employee’s furlough in anticipation of a request to take FFCRA leave after calling the employee back to work).
* * *
Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.