To say that COVID-19 has shaped the year would be an understatement. COVID-19 will probably shape the decade at the very least. Just as we think we are getting a handle on how to respond, we see a new challenge. As employers, you may experience this phenomenon daily or even more frequently. As I have often said, existing employment laws are not on hold. But existing laws did not envision a global pandemic. Compliance often feels like a challenge under present circumstances. So what’s an employer to do? Well, the DOL may be able to help with some of your concerns. Last week, the DOL released even more updated guidances in Q&A form regarding COVID-19 and the FMLA, the FLSA, and the FFCRA. They are separate updates for each law, so I’ll take each one separately, highlighting the major points. Let’s start with the FMLA. Here are the key points from the DOL’s latest Q&A: Question #8 discusses what happens when an employer changes their leave policies during the pandemic in an effort to reduce costs. The answer: nothing, really. Nothing in the FMLA (or FFCRA for that matter) prohibits an employer from revising their leave policies at any time. As long as those changes do not have an adverse impact on a disproportionate number of employees in any one or more protected classes (i.e. race, gender, religion, color, national origin, disability, etc) then the change does not run afoul of FMLA. With that said, however, don’t forget to look at laws in any states or localities where you have employees working. If those states/localities do prohibit changes to employee leave policies you will need to comply with those laws.
In Question #12, the DOL addressed the issue of doctor visits. Specifically, under the FMLA, visits for medical treatment are supposed to be in-person. What about telemedicine visits? In an effort to prevent the spread of COVID-19, many healthcare practitioners are only providing telemedicine visits. Are those “in-person” visits within the meaning of the FMLA? The DOL has answered “Yes”, and also says that electronic signatures are sufficient. To qualify as an in-person visit, however, the telemedicine appointment must include examination, evaluation and/or treatment, be performed by a healthcare provider, and comply with state licensing authority requirements.
Can you require a negative COVID test before allowing any employee to return to work and still be in compliance with the FMLA reinstatement requirements? The DOL provides an answer in Question #13, and answers in the affirmative. The one condition here is that it must be a uniform requirement for all employees returning to the workplace. The leave itself is not the reason for the requirement, as all employees are subject to the same requirement, and so it’s not FMLA retaliation.
You can find the entire guidance, text and all, here.
OK, let’s move over to the Fair Labor Standards Act (FLSA), our federal wage and hour law. Here are the key points from this latest Q&A: The first two key points relate to teleworking. The DOL reminds us in its answer to Question #14 that nonexempt employees must be paid for ALL hours worked, including all hours worked at home (or some other remote location) and even those hours the employees worked that the employer did not authorize. With that said, if an employee works a certain number of hours that the employer did not have reason to know about, then the employer does not have to pay for those hours. When would an employer not have reason to know about hours worked? This situation usually arises when the employee doesn’t report the hours and there is no evidence the employee worked those hours. The DOL does recommend having software or some other system adequate for capturing all hours worked, and a “reasonable means of accurately reporting all hours worked”. If you can train your employees on the importance of accurately reporting all hours worked that is better. Even better: provide a means for employees to confirm their time records before they are submitted to payroll.
In its answer to Question #15, the DOL addresses the need for a more “relaxed” workday or flexible schedule. Employees who work from home and who have children home from school or childcare may need longer than usual breaks to address childcare, homeschooling, or similar issues. The employer and employee can agree to an alternate schedule, as long as the employee is paid for all actual hours worked. (On a side note, the DOL also assures us in its answer to Question #18 that exempt employees who take leave under the FFCRA do not lose their exempt status by reason of that leave).
Now, of course, you probably have some exempt employees working from home, too. Many jobs have a mix of exempt and non-exempt duties. As long as the exempt duties are the primary duties the job is exempt and the employee would not receive overtime pay if s/he works more than 40 hours in a given week. During the pandemic, however, many employers have found themselves in exigent circumstances, where they have had to ask exempt employees to take on more non-exempt duties. Would these employees’ exempt status change, then? In its answer to Question #16, the DOL says that if those duties are required by an emergency then the exemption remains intact. What qualifies as an “emergency”? The DOL says an emergency is a circumstance that “‘threaten[s] the safety of employees, a cessation of operations or serious damage to the employer’s property,’ and which are beyond the employer’s control and could not reasonably be anticipated.” The DOL goes on to say that the pandemic is such an event, but emphasizes that the employer must continue to pay the employee a minimum salary of $684 a week. (You can, however, reduce an exempt employee’s salary without jeopardizing the employee’s exempt status as long as the salary never goes below $684 a week, and the reduction is not based on quality or quantity of work (See Question #19).
Lastly, the DOL reminds us that an employer is under no obligation to provide an employee “hazard pay” or other additional compensation for working under more dangerous conditions (unless it’s required under a Collective Bargaining Agreement or other employment contract). If you do provide such additional compensation, however, you would have to include it in determining the employee’s regular pay rate for purposes of calculating overtime pay.
You can find the full guidance on these and other FLSA issues here.
All right then. That leaves us with updated guidance on the FFCRA. There are 3 key points addressed in this guidance. All of them relate at least in part to return-to-work issues. We know that if any employee takes FFCRA leave they are entitled to be reinstated to the same or an equivalent position. What if it’s an employee that has self-quarantined, and you are concerned s/he may still have COVID-19, though? The DOL, in its answer to Question #94, says that under these circumstances you can have the employee temporarily work in a position that requires less interaction with others, or telework on a temporary basis. You may also require a negative COVID test before allowing the employee to return to work.
What happens when a furloughed employee is about to return to work? The DOL reminds us in its answer to Question #97 that you cannot refuse to return that employee to work out of fear the employee might then seek to take FFCRA leave. The DOL says that would be retaliatory, which could subject you to liability under the FFCRA.
Finally, the DOL makes it clear in its answers to Questions #95 and 96 that a furloughed employee returning to work doesn’t lose entitlement to up to 2 weeks’ Emergency Paid Sick Leave. While returning to work doesn’t give them a new 2-week leave opportunity, they are entitled to whatever EPSL or Emergency Family Medical Extended Leave Act (EFMELA) they did not use prior to the furlough.
You can find the full DOL guidance on all things FFCRA here.
OK, that’s it for now. We may well see some additional guidance from the DOL, later on, so stay tuned!
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
Watch my television interview on Stop My Crisis with Vivian Gaspar.
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