New Guidance for Employers under the FFCRA, the FLSA and the FMLA
On Monday, the U.S. Department of Labor (DOL) posted another guidance blitz, this time posting questions and answers on three different websites for the Families First Coronavirus Response Act (FFCRA), the Fair Labor Standards Act (FLSA) and the Family Medical Leave Act (FMLA)). Here is an overview of what you need to know:
New DOL guidance under the FFCRA adds four (4) new questions and answers centering on telework, returning to work after leave, and the intersection of furloughs and the FFCRA. The following are helpful and interactive questions that have much more of a “real world” feel than some of the earlier DOL guidance:
– My employee used two weeks of paid sick leave under the FFCRA to care for his parent who was advised by a health care provider to self-quarantine because of symptoms of COVID-19. I am concerned about his returning to work too soon and potentially exposing my other staff to COVID-19. May I require him to telework or take leave until he has tested negative for COVID-19?
– I was working full time for my employer and used two weeks (80 hours) of paid sick leave under the FFCRA before I was furloughed. My employer said I could go back to work next week. Can I use paid sick leave under the FFCRA again after I go back to working?
– I have an employee who used four weeks of expanded family and medical leave before she was furloughed. Now I am re-opening my business. When my employee comes back to work, if she still needs to care for her child because her child care provider is unavailable for COVID- related reasons, how much expanded family and medical leave does she have available?
– My business was closed due to my state’s COVID-19 quarantine order. I furloughed all my employees. The quarantine order was lifted and I am returning employees to work. Can I extend my former employee’s furlough because he would need to take FFCRA leave to care for his child if he is called back to work?
While the DOL has provided some great information in the answers to these questions online, please keep in mind that every situation is fact specific. Also, with respect to the FFCRA, remember that there are two (2) components of the law: the Emergency Paid Sick Leave (EPSLA) and Emergency Family Medical Leave Expansion Act (EFMLEA). The guidance is pretty high-level and requires some focus to ensure that you keep track of whether the DOL is talking about the EPSLA or the EMFLEA. If any questions similar to the above are coming across your desk, I encourage you to reach out to legal counsel.
Next, the DOL guidance under the FLSA adds five (5) new questions and answers about accounting for hours, salaried employees, how to maintain “exempt” status, and hazard pay. There is lots to unpack:
– I am an employer who allows my employees to telework during the COVID-19 emergency. Now that my employees are no longer at my worksite, how do I determine their hours of compensable work? Do I have to pay my employees for hours I did not authorize them to work? Do I have to pay them for hours worked even when they do not report those hours?
– I am an employer who allows my employees to telework during the COVID-19 emergency. I would also like to give my employees flexibility in hours of work so they can take time out of the normal workday for personal and family obligations, such as caring for their children whose schools have closed. If I allow my employees to begin work, take several hours in the middle of the workday to care for their children, and then return to work, do I have to compensate them for all of the hours between starting work and finishing work?
– Can a salaried executive, administrative, or professional employee who is exempt from the Fair Labor Standards Act’s (FLSA’s) minimum wage and overtime requirements under Section 13(a)(1) perform other nonexempt duties during the COVID-19 public health emergency and continue to be treated as exempt?
– Is hazard pay required under the Fair Labor Standards Act (FLSA) for employees working during the COVID-19 pandemic? I am a salaried employee exempt from the minimum wage and overtime pay requirements under Section 13(a)(1) of the Fair Labor Standards Act (FLSA) as a bona fide executive, administrative, or professional employee. Will I lose my exempt status if I take leave under the Families First Coronavirus Response Act (FFCRA)?
– I am a salaried employee exempt from the minimum wage and overtime requirements under Section 13(a)(1) of the Fair Labor Standards Act (FLSA) as a bona fide executive, administrative, or professional employee. Can my employer reduce my salary during the COVID-19 pandemic or an economic slowdown? Would I lose my exempt status if my employer does?
Here is the bottom line: when in doubt, pay it out. Again, all of these inquiries are fact specific and the analysis can change based on any number of small shifts in the situation. The DOL guidance on the FLSA is a great place to start, but you should always double check with legal counsel on wage and hour issues. The penalties under the wage and hour laws are too high to risk a mistake.
Finally, the DOL guidance under the FMLA with regard to COVID-19 adds two (2) interesting new questions and answers about telemedicine and an employer requiring COVID-19 tests before returning to work:
– Due to safety and health concerns related to COVID-19, many health care providers are treating patients for a variety of conditions, including those unrelated to COVID-19, via telemedicine. Telemedicine involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices. Under these circumstances, will a telemedicine visit count as an in-person visit to establish a serious health condition under the FMLA?
– I was out on FMLA leave unrelated to COVID-19. While I was out, my company implemented a new policy requiring everyone to take a COVID-19 test before they come to the office. Under the FMLA, can my employer require me to get a COVID-19 test under this policy?
Will a telemedicine visit count as an in-person visit to establish a serious health condition under the FMLA? Yes, for now. Can an employer require a COVID-19 test before an employee returns to work? Yes, technically. There are no easy answers, and the law is fast-moving. Even if these answers seem “clear cut,” they aren’t. If faced with any of these above scenarios, you are urged to reach out to your legal advisor.
This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Amy Dieterich, Jordan Payne Hay, and James F. Pross are employment and labor law attorneys; others at the firm handle business and other matters. Since 1853, Skelton Taintor & Abbott has provided a full range of high-quality legal services to the individuals, companies, and municipalities of Maine. The firm’s main office is located in Auburn and in January 2019, a mid-coast office was opened in Waldoboro.