This week the U.S. Department of Labor issued questions and answers on key laws that affect employers and employees alike. The purpose of these questions and answers are to provide clear guidance as to how each law – the Fair Labor Standards Act (FLSA), the Family Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA) – will be influencing workplace practices and procedures in light of COVID-19. Our highlights cover important aspects of the new guidance provided by the Department of Labor. Some of the key takeaways from the questions and answers are outlined below.
Fair Labor Standards Act
Below are the most recent updates released by the Department of Labor regarding the FLSA and COVID-19:
- Employers do not need to pay employees for hours paid throughout the workday that the employee does not work. For example: if an employee takes several hours in the middle of the day to care for children, the employer does not need to compensate an employee for that time during which work was not performed.
- Hazard pay is not required under FLSA for employees working during the pandemic.
- Exempt employees may be required to perform the duties of nonexempt employees temporarily as a result of the COVID-19 crisis, so long as they are paid a minimum of $684 weekly. The exempt employee will retain their exempt status.
- Employees cannot lose their status as an exempt employee under FLSA requirements for taking FFCRA leave.
- An employer can reduce an exempt employee’s salary as long as COVID-19 is the actual cause of the need for reduction. The need for salary reduction must be predetermined – it cannot be determined after the employer sees how much work will be required from the employee that week, month, etc. If these requirements are met, the employee will still retain exempt status, so long as the employee is paid at least $684 weekly.
Below are key provisions that the Department of Labor previously released regarding the FLSA and COVID-19:
- If employers are not able to provide work for non-exempt employees that are paid hourly, management does not have to provide pay. Payment is made only for hours worked.
- There is no limit to the hours or days employees older than 16 can be required to work.
- Employees can be required to do work that is outside of their job description if the employee is over the age of 18. If they are under the age of 18, the employer is subject to restrictions.
- Employers must pay employees for all telework hours performed away from the primary worksite. It is advisable to provide appropriate procedures for time reporting.
- Volunteers performing services do not need to be compensated under FLSA; employees cannot volunteer to perform services they typically perform for compensation.
To read all of the questions and answers the Department of Labor has issued pertaining to FLSA, click here.
Family Medical Leave Act
Below are the most recent updates released by the Department of Labor regarding FMLA leave and COVID-19:
- FMLA does not prohibit employers from requiring employees to get tested for COVID-19.
- Virtual doctor’s visits count as an in person doctor’s visits for the purposes of demonstrating a serious health condition under FMLA.
Below are some other provisions that the Department of Labor has released in the months since the pandemic hit the United States regarding FMLA leave:
- Employees are able to take leave if their employer is covered and employees meet the following criteria:
- The employee has worked for the employer for 12 months;
- The employee has completed 1,250 hours of work in the past 12 months; and
- The employee works at a “location where at least 50 employees are employed by the employer within 75 miles.”
- Employees are not covered under FMLA for the purpose of staying home to avoid exposure to COVID-19.
- Employers can require employees to provide medical documentation or be free of symptoms for a specified duration before returning to the workplace.
- Federal laws govern termination decisions, and employees cannot be discriminated against because they are seeking or have used FLMA leave.
- Employers can change their paid leave policy so long as it is not discriminatory.
- If an employee needs to care for a sick spouse, parent, or child, their job is protected for twelve weeks under FMLA.
To read all of the questions and answers the Department of Labor has issued regarding FMLA, click here.
Families First Coronavirus Response Act
Below are the most recent updates released by the Department of Labor regarding FFCRA leave and COVID-19:
- Employees cannot be required to be tested for COVID-19 or work remotely solely because they took leave under FFCRA. If the employer knows an employee has interacted with someone with COVID-19, the employer can require them to get tested or work remotely until they do so.
- Employees cannot receive more than 80 hours total of paid sick leave at employee’s regular rate of pay as provided by the FFCRA, even if they took FFCRA leave at an earlier time or prior to a furlough.
- Employees are entitled to up to 12 weeks of expanded family and medical leave total under the FFCRA. The leave may split up into two or more leave periods, as the need for the employee’s leave may differ.
- Employers cannot discriminate against employees because of their need or potential leave to take FFCRA leave.
As of this week, the Department of Labor has issued 97 questions and answers related to the FFCRA. To read them all, click here.
Federal and local laws have been rapidly changing while the country battles COVID-19 and strives to create safe communities and workplaces. We will continue to analyze legal updates and provide you with the latest information. Please reach out with any questions as to how these changes may affect your operations.