DOL Provides COVID-19-Related Guidance on FLSA, FMLA and FFCRA

By Fiona W. Ong - Shawe Rosenthal LLP

July 20, 2020

On July 20, 2020, the U.S. Department of Labor issued additional Q&A resources to provide guidance to employers on COVID-19-related issues under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA). While much of the guidance reiterates general principles under each of these laws, they offer some interesting insights on a few issues specific to COVID-19.

The Fair Labor Standards Act resource affirms that hourly non-exempt employees need only to be  paid for the hours actually worked, that exempt employees must be paid a weekly salary that is not subject to deductions for the quantity or quality of work performed, and that individuals may not volunteer to work for a private, for-profit employer. Of particular interest:

•    An employer can require employees to take accrued vacation or paid time off (PTO) during office closures.
•    Particularly in light of staffing shortages, employees can be required to perform work outside of their job descriptions. In addition, exempt employees can temporarily be required to perform non-exempt duties without jeopardizing their exempt status.
•    Unless a telecommuting employee is subject to a collective bargaining or other employment agreement, or telecommuting is being permitted as a reasonable accommodation under the Americans with Disabilities Act (ADA), an employer may reduce the pay of such non-exempt employees as long as they receive at least the applicable minimum wage rate.
•    An employer may prospectively reduce the salary of exempt employees due to economic reasons related to COVID-19 or an economic downturn, as long as the employee continues to receive the required minimum weekly salary ($684).
•    Employers are not required to cover additional work-from-home costs (e.g. internet, equipment, etc.) incurred by employees, as long as those costs do not reduce the employee’s hourly rate below the minimum wage. If telecommuting is a reasonable accommodation under the ADA, however, then the employer is responsible for any additional costs.
•    Safe workplace standards under the Occupational Safety and Health Act do not apply to home offices. Employers must still record any work-related injuries or illnesses incurred in the home office, however.
•    In order to accommodate childcare needs, an employer that allows employees to telework with flexible hours during the COVID-19 emergency does not need to count as hours worked all the time between an employee’s first and last principal activities in a workday. Rather, only those hours actually worked need be paid – but the employee and employer should be very clear as to what the arrangement is.
•    Hazard pay is not required under the FLSA.

The Family and Medical Leave Act resource reiterates that eligible employees are entitled to FMLA leave for their own or a family member’s serious health condition. Note that COVID-19 does not automatically meet the statutory definition of a serious health condition, however, so employers must make a case-by-case determination as to whether the FMLA applies. With regard to COVID-19, the resource makes the following points of interest:

•    The DOL states that, “Leave taken by an employee for the purpose of avoiding exposure to COVID-19 would not be protected under the FMLA.” We note, however, that an employee may, in fact, have an underlying serious health condition that may require them to avoid exposure to COVID-19, and therefore might be entitled to FMLA leave on that basis.
•    Regular FMLA does not apply to care for healthy children who have been dismissed from school or child care. (Expanded FMLA rights may exist under the FFCRA, however).
•    Employers unable to afford widespread use of sick leave may change their sick leave policies, as long as they are not bound by a collective bargaining or employment agreement, and they comply with applicable sick leave laws and the FMLA (which governs only the usage of available sick leave, but does not require employers to provide paid sick leave).
•    The FMLA requires in-person visits to a doctor to establish a serious health condition and, until December 31, 2020, the DOL will consider telemedicine appointments to meet the in-person requirement.
•    An employee returning from FMLA may be required to get a COVID-19 test as long as all employees returning to the office are so required.

Several new questions were added to the Families First Coronavirus Response Act resource, providing as following:

•    Although employees are entitled to job reinstatement upon returning from FFCRA leave, an employer may require an employee who was caring for – and thus exposed to – a family member with COVID-19 to comply with job-related requirements regardless of the use of FFCRA leave, such as teleworking or taking additional leave until they have tested negative for COVID-19.
•    An employee is only entitled to 80 hours of FFCRA Emergency Paid Sick Leave (E-PSL) in total. Thus, if an employee used up this allotment prior to a furlough, they are not entitled to any additional E-PSL upon returning from furlough.
•    An employee is entitled to use 12 weeks of FMLA leave for the COVID-19-related closure of a child’s school or childcare (E-FMLA). If an employee used only a portion of that allotment prior to a furlough, they would be entitled to use the rest upon returning. If the child care need has changed (school v. summer camp), the employer is entitled to documentation for the new reason.
•    An employer may not decide not to recall an employee from furlough because the employee would need to take FFCRA leave for childcare reasons if they were recalled.

This is obviously a fast-moving and ever-changing situation, and we will continue to send out E-Lerts on any significant developments. You may also wish to check our continually-updated FAQs frequently.