DOL Issues FLSA, FMLA and FFCRA Guidance

On July 20, 2020, the Division of Labor (DOL) launched three up to date, new and separate questions and solutions on COVID-19 with respect to the legal guidelines it enforces – the Household and Medical Go away Act (FMLA), the Truthful Labor Requirements Act(FLSA), and the Households First Coronavirus Response Act (FFCRA), in addition to a revised poster and an easy-to-read, fast reference truth sheet for employers on the FFCRA.  The DOL answered questions on telework and compensability of hours beneath the FLSA, and defined that nonexempt work carried out through the pandemic won’t influence the exempt standing of a place, amongst different issues.  Among the extra notable updates are summarized beneath. 

Household and Medical Go away Act (Q&As):

Query eight particularly addressed employers who change their paid go away insurance policies through the pandemic as a method to scale back prices.  The DOL famous that neither the FMLA nor another legislation it’s answerable for implementing prohibits an employer from making these modifications to its paid go away insurance policies, as long as the modifications wouldn’t have a disparate influence on staff based mostly on race, gender, age or different protected attribute.  After all, employers ought to do not forget that state legal guidelines, e.g., California’s, could influence their potential to vary paid go away insurance policies.  

In Query 12, the DOL mentioned that through the COVID-19 pandemic, visits to docs by way of telemedicine are thought of in-person visits, and digital signatures are enough for functions of creating eligibility beneath the Household and Medical Go away Act.  Nevertheless, to be thought of an in-person go to, the telemedicine go to should embody an examination, analysis, or therapy by a well being care supplier; be carried out by video convention; and be permitted and accepted by state licensing authorities. 

In Query 13, the DOL confirmed that the FMLA doesn’t prohibit an employer from requiring a unfavorable COVID-19 take a look at earlier than permitting an worker who was out on go away unrelated to COVID-19 to return to work as long as this can be a uniform requirement for all staff returning to the work place.  It’s because it’s not the worker’s go away itself that varieties the explanation for a unfavorable take a look at; reasonably, all staff are topic to the identical requirement, and due to this fact, the unfavorable take a look at just isn’t prohibited nor thought of retaliatory conduct.

Truthful Labor Requirements Act (Q&As):

In Query 14, the DOL answered that every one hours teleworked are thought of compensable work time for which hourly staff should be compensated.  The DOL reminded employers that this contains even these hours labored remotely that the employer didn’t authorize.  Nevertheless, employers usually are not required to pay employees for hours labored in the event that they haven’t any motive to learn about them – that means they aren’t reported and there’s no proof that they had been labored.  The DOL cautioned employers to supply staff an inexpensive means to report all hours labored to make sure that they’re capturing hours.  Given the significance of precisely reporting hours labored, particularly for workers who historically haven’t been permitted to work remotely, employers must also think about coaching staff on this problem and supply a method for workers to verify their time information earlier than submission to payroll.

In Query 15, the DOL knowledgeable employers that it was making use of a “relaxed” steady workday commonplace.  Usually, alltime between the primary work exercise of the day and the final exercise of the day is taken into account compensable work hours beneath the continual workday commonplace (aside from bona fide lunch breaks).  Nevertheless, beneath the present telework atmosphere, the DOL needs to encourage employers to be extra versatile as staff are sometimes required to take longer breaks to handle youngster care, homeschooling, and related wants.  As such, the DOL mentioned it’s acceptable for employers and staff to conform to alternate schedules (e.g., 7–9 a.m., 11:30–three p.m., and seven–9 p.m. on weekdays) to permit breaks through the day to take care of residence wants, offered the worker is paid for all hours truly labored.  Furthermore, in Query 18, the DOL tells staff that they won’t lose their exempt standing in the event that they take go away beneath the Households First Coronavirus Response Act.

In Query 16, the DOL reminds employers that the wage and hour rules permit exempt staff to carry out nonexempt duties which might be required by an emergency with out shedding their exemptions.  An emergency is outlined as one which “‘threaten[s] the protection of staff, a cessation of operations or severe harm to the employer’s property,’ and that are past the employer’s management and couldn’t moderately be anticipated.”  The DOL acknowledged that the pandemic is such an occasion, and won’t disallow an exemption based mostly on an exempt worker performing nonexempt features, offered the worker continues to be paid on a salaried foundation of at the very least $684/week.  On the identical time, in Query 19, the DOL reminded staff that employers can cut back weekly salaries with out shedding exempt standing because of the financial downturn, offered the weekly wage stays at the very least $684/week, and the discount just isn’t based mostly on the standard or amount of the work carried out.  

Lastly, in Query 17, the DOL reminds employers and staff that there isn’t a obligation to supply extra compensation beneath the FLSA to pay staff as “hazard pay,” even when the staff’ work locations them at risk as a consequence of COVID-19.  Nevertheless, the DOL cautions employers that any “hazard” pay enhancement that’s offered should be included within the worker’s common price of pay when calculating extra time owed.

Households First Coronavirus Response Act (Q&As):

In Query 94, the DOL famous that employers have some flexibility in returning an worker to work who has been self-quarantined beneath FFCRA if they’ve issues over the unfold of COVID-19; however the duty to return the worker to the identical or equal place with the identical or equal pay and advantages.  Particularly, an employer might briefly reinstate the worker to a place that requires much less interplay with coworkers or require that the worker telework.  Additional, the DOL notes that employers may also require a unfavorable COVID-19 take a look at earlier than permitting an worker to return to work.

In Questions 95 and 96, the DOL states that staff are solely entitled to a most of two weeks (80 hours) of 100% paid sick go away beneath FFCRA, even when the worker was furloughed for a time period, after having used such go away after which returning to work after the furlough.  Returning to work doesn’t “restart” a brand new two-week alternative; the full quantity of paid sick go away beneath the FFCRA is restricted to 2 weeks.  However an worker coming back from furlough would nonetheless have no matter go away that they had not but used – whether or not paid sick go away (as much as two weeks) or paid prolonged household go away to take care of the worker’s youngster due to faculty closure/unavailability of kid care (as much as 10 weeks) beneath the FFCRA.  Employers ought to do not forget that staff can selected to make use of different out there, accrued paid day without work even when they’ve exhausted FFCRA go away.

In Query 97, the DOL reminded employers that they can not refuse to return an worker to work after a furlough on the grounds that the worker may have go away beneath the FFCRA after his or her return. Such a refusal could be retaliatory. 

These Q&As are seemingly not the ultimate occasion wherein the DOL will replace its steering in these areas, as employers are always challenged with new and creating points on this new world order involving the novel coronavirus.