On July 20, 2020, the U.S. Department of Labor published additional guidance on how the Families First Coronavirus Response Act (“FFCRA”), the Fair Labor Standards Act (“FLSA”), and the Family and Medical Leave Act (“FMLA”) may be implicated as businesses continue to reopen during the current COVID-19 pandemic.
Regarding FFCRA, the DOL clarified that employees are entitled to a maximum of 80 hours of paid sick leave, total. Therefore, if an employee took 80 hours of paid sick leave under FFCRA prior to being furloughed or the business closing, and the employee has since returned, he or she is not eligible for another 80 hours of paid sick leave under FFCRA. This rule similarly applies to paid leave taken under the expanded family and medical leave portion of FFCRA.
Importantly, the DOL also stated that an employer may not make an employment related decision, such as if and when to bring an employee back from furlough, based upon an assumption or actual request to take paid leave under FFCRA.
Employers covered by FFCRA must post this poster informing employees of their rights under FFCRA in a “conspicuous place on its premises.” Due to so many employees working remotely, an employer may satisfy this requirement by emailing or direct mailing it to employees and job applicants, or posting on an employee information website. The DOL has also published a poster to help inform employees of what leave he or she may be entitled to, which can be found here. Lastly, the DOL has created an interactive questionnaire employees can click through that will help determine if they qualify for leave, and if so, the amount. This can be found here. A similar tool for employers is expected to be forthcoming.
The DOL’s guidance once again emphasized that, under the FLSA, employers must compensate employees for all hours of work, as long as the employer knew or had reason to believe work was performed, even if it wasn’t authorized. Because a higher than normal number of employees are working remotely, this means employers need to make sure they are clearly communicating with employees regarding their hours of work and have an appropriate procedure for reporting hours of work. However, if the employer and employee have agreed to a flexible workday schedule, such as working 7:00-9:00 a.m., 11:30-3:00 p.m., and 7:00-9:00 p.m., the employer does not need to compensate the employee for all hours between 7:00 am – 9:00 pm. The employer only needs to compensate the employee for the hours where work was actually performed.
Because many employers have had to alter multiple employees’ duties to comply with additional safety measures, such as temperature screenings, the DOL made clear that an otherwise salaried, exempt employee earning at least $684 per week will not lose his or her exempt status for performing these nonexempt duties. An employer may reduce a salaried, exempt employee’s salary due to COVID-19, but it must be done prospectively.
Due to many medical appointments becoming remote during this pandemic, the DOL confirmed that these “telemedicine” visits are sufficient to qualify an employee’s “serious health condition” under the FMLA. The telemedicine visit must include an examination, evaluation, or treatment by a health care provider, be performed by video conference, and be permitted and accepted by state licensing authorities.
Additionally, employers are permitted to have testing policies that require all employees to be tested before they return to work, and this would apply to employees who were out on FMLA leave unrelated to COVID-19.