The U.S. Department of Labor (DOL) continues to issue new COVID-19 guidance. Here is a roundup of recent guidelines related to the coronavirus and the Families First Coronavirus Response Act (FFCRA), the Family and Medical Leave Act (FMLA), and the Fair Labor Standards Act (FLSA).
FFCRA and Furloughs
During the COVID-19 pandemic, many employers have made the difficult decision to furlough employees. A “furlough” isn’t a layoff or a termination of employment; rather, it’s a temporary leave of absence in which employees aren’t scheduled, permitted, or authorized to perform work and don’t receive pay.
Recent DOL guidance made clear employees who rely on FFCRA leave—whether paid sick leave or expanded family and medical leave—prior to a furlough would be entitled to use only whatever leave they have remaining after returning from the furlough.
Under the Act, employees are limited to 80 hours of paid sick leave. So, if an employee had taken fewer than 80 hours of paid sick leave before a furlough, he could use the remaining hours after returning if he has a qualifying reason to do so.
The same is true for expanded FMLA leave. Under the FFCRA, eligible employees can take up to 12 weeks of expanded family and medical leave. The weeks an employee is furloughed don’t count as time on leave under the Act. For example, if an employee used only 4 weeks of expanded family and medical leave before the furlough, upon returning she would be eligible for 8 additional weeks of leave if she has a qualifying reason to take it.
The DOL further warns employers to avoid discriminating against certain employees who need or request FFCRA leave. For example, you may not choose not to recall employees from (or continue their) furlough because they had attempted to exercise a right to leave under the FFCRA—i.e., they indicated a need for the leave to care for a child.
FLSA and Telework
Overtime considerations. During the pandemic, many employers have allowed certain employees to follow flexible work schedules, including telework (or work performed away from the primary worksite). For compensation purposes, working from home is treated the same as work performed at the primary business site.
Under the FLSA, you must pay employees for all hours of telework actually performed away from the primary worksite, including overtime work, provided you knew or had reason to believe it was being performed. That’s true even if you didn’t authorize the work. You also must pay for unreported hours of telework you know or have reason to believe were performed.
You aren’t required to pay employees, however, for unreported hours of telework you had no reason to believe had been performed. That is, you neither knew nor should have known about the unreported hours. In most cases, you may satisfy the obligation to pay teleworking employees by providing reasonable time-reporting procedures and compensating them for all reported hours.
Divided workdays. Some employers are providing flexibility in the hours of work so employees can take time out of the normal workday for personal and family obligations, such as caring for children. If employees begin their duties but take several hours in the middle of the day to care for children and then return to work, you aren’t required to pay them for all of the hours between the starting and finishing times.
The DOL made the specific exception to the general “continuous workday” guidance it had released in the midst of the COVID-19 emergency. In the FFCRA rulemaking, the agency said if employees are allowed to telework with flexible hours during the crisis, you don’t need to count as hours worked all the time between their first and last principal activities in a workday.
For example, assume you and your employee agree to a weekday telework schedule of 7:00-9:00 a.m., 11:30 a.m.-3:00 p.m., and 7:00-9:00 p.m. The timing allows your employee, for instance, to help teach her children whose schools are closed, reserving work for slots when there are fewer distractions. Of course, you must pay the employee for all hours actually worked (7.5 hours here) but not all 14 hours between her first and last principal activities.
Mix of exempt, nonexempt duties. Because of the pandemic, exempt executive, administrative, and professional employees may be performing some nonexempt duties. In normal times, the performance of the nonexempt duties could cause them to lose their exemption status and expose an employer to potential FLSA liability for overtime pay.
The DOL has stated, however, the COVID-19 public health emergency declared by a federal, state, or local authority temporarily allows otherwise-exempt employees to perform nonexempt duties required by the crisis without losing the exemption.
The agency’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 that are beyond the employer’s control and couldn’t reasonably be anticipated.
COVID-19 is a rare event affecting the public welfare of the entire nation that an employer couldn’t reasonably anticipate and is consistent with the FLSA’s regulatory criteria for emergencies. Employees who are temporarily required to perform nonexempt duties because of the coronavirus 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.
FLSA And Salary Reductions
Many employers have made the difficult decision to reduce FLSA-exempt employees’ salaries. The DOL has confirmed you may prospectively lower the amount regularly paid to a salaried exempt employee for economic reasons connected with COVID-19 or a related economic slowdown without losing the exempt status under the Act.
The salary reduction must be made on a go-forward basis and not applied as an after-the-fact deduction from the employee’s pay. As a reminder, no deductions can be made based on the quantity or quality of the employee’s work or, for example, your company’s day-to-day or week-to-week needs. A proper salary reduction to an exempt employee’s salary won’t cause the individual to lose her exempt status under the FLSA.
FMLA and Telemedicine
The DOL has also recently clarified telemedicine’s effect on considerations of a serious health condition under the FMLA. Because of COVID-19 safety and health concerns, many healthcare providers are using telemedicine to treat patients for a variety of conditions, whether coronavirus-related or not. Telemedicine involves the examination or treatment of a patient by remote video conference.
The DOL has confirmed telemedicine visits count as in-person visits for FMLA purposes. Until December 31, 2020, the agency will consider telemedicine visits to be in-person visits and allow electronic signatures for purposes of establishing a serious health condition under the FMLA. To be considered an in-person visit, the telemedicine session must include the following:
- A healthcare provider must perform an examination, evaluation, or treatment;
- The visit must be conducted by video conference; and
- It must be permitted and accepted by state licensing authorities.
The DOL has permitted the approach because healthcare facilities and clinicians around the nation are under advisories to prioritize urgent and emergency visits and procedures and to preserve staff personal protective equipment (PPE) and patient-care supplies.
Paige Hoster Good is an employment lawyer with the Oklahoma City, Oklahoma, office of McAfee & Taft. You can reach her at email@example.com.