As employers continue to grapple with the COVID-19 pandemic, the U.S. Department of Labor (DOL) has released new guidance that attempts to answer questions related to employee pay and leave time.
The guidance addresses protections and requirements of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA). The guidance—in question-and-answer form—tackles how the pandemic affects the various laws.
The new guidance covers a number of areas related to how employees are to be paid.
Richard L. Rainey, an attorney with Womble Bond Dickinson (US) LLP in Charlotte, North Carolina, points out one notable part of the guidance covers how to track time if a nonexempt employee has to spend part of a workday to deal with children’s remote learning requirements.
The guidance states an employer can allow employees the flexibility to take time out of the normal workday to work with children whose schools are closed without having to pay them for that time.
The guidance explains that under normal conditions, all time between the performance of the first and last principal activities of a workday is compensable. But the guidance says the DOL recognized applying that practice to teleworking arrangements “would discourage needed flexibility during the COVID-19 emergency.”
Therefore, the FFCRA rulemaking allows employers offering flexible hours to not count as hours worked all the time between an employee’s first and last principal activities during the workday.
On another topic, the guidance says exempt employees can perform nonexempt duties during the COVID-19 emergency without losing their exempt status. The guidance states that “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 nonexempt duties that are required by the emergency without losing the exemption.” Such employees won’t lose the exemption as long as they continue to be paid on a salary basis of at least $684 a week.
Another question many employers and employees have had since the COVID-19 outbreaks began relates to whether essential workers have to be paid extra because of the risks they incur at work.
“While I didn’t think there was much controversy about this, the guidance confirms that the FLSA does not require any sort of hazard pay for workers exposed to COVID-19 risks,” Rainey says.
How the pandemic affects FMLA coverage is another area that’s been in question.
The new guidance sheds some light on that and other questions. For example, Rainey says that at least for this year, certain telemedicine visits will count as in-person visits for the purpose of determining if an employee has an FMLA serious health condition.
The guidance also covers such FMLA-related topics as whether an employer must grant leave to an employee who is sick or caring for a sick family member and whether employees can stay home on FMLA leave to avoid getting COVID-19.
The guidance says sick employees or those caring for sick family members are, under certain circumstances, entitled to FMLA leave. The guidance goes on to state that workers who are ill with COVID-19 or have family members sick with the virus are urged to stay home to minimize spread. “Employers are encouraged to support these and other community mitigation strategies and should consider flexible leave policies for their employees,” the guidance says.
As for whether employees can stay home to avoid getting COVID-19, the guidance says that leave taken by an individual for the purpose of avoiding exposure to the virus isn’t protected under the FMLA. Also, the Act doesn’t apply to employees who take time off to care for healthy children out of school or day care.
The FFCRA requires private employers with fewer than 500 employees to provide paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. Small businesses with fewer than 50 employees may qualify for an exemption from the requirement to provide leave if the leave requirements would jeopardize their viability.
The law provides that employees of covered employers are eligible for up to 80 hours of paid sick leave at their regular rate of pay when they are unable to work because they are quarantined and/or experiencing COVID-19 symptoms and seeking a medical diagnosis.
The law also provides for up to 80 hours of paid sick leave at two-thirds the employee’s regular rate because she is unable to work because of a need to care for an individual subject to quarantine or for a child whose school or daycare provider is closed or unavailable because of COVID-19 and/or the employee is experiencing a substantially similar condition.
The FFCRA also provides for an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay when an employee who has been employed for at least 30 calendar days is unable to work because of a need to care for a child whose school or care provider is closed or unavailable for reasons related to COVID-19.
Rainey says when the law was first passed, his clients had numerous questions about how to implement emergency paid sick leave and extended FMLA. The initial regulations were helpful, but the new guidance provides more answers.
“I anticipate that depending on what happens with schools across the country there will be more questions regarding extended FMLA due to lack of child care,” Rainey says.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.