The DOL Updates Its COVID-19 Guidance

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Patricia Tsipras

July 28, 2020

On July 20, 2020, the U.S. Department of Labor (DOL) updated its COVID-19 guidance to address certain return to work issues under the Families First Coronavirus Response Act (FFCRA), compensation issues under the Fair Labor Standards Act (FLSA), and leave issues under the Family and Medical Leave Act.

Updated FFCRA Guidance

1. The DOL provides guidance to employers whose employees are returning to work after caring for a family member exposed to COVID-19.  Employees returning to work after FFCRA leave are entitled to be restored to their same or an equivalent position.  However, employers may be able to bring employees back to positions requiring less interaction with coworkers or require them to telework.  In addition, given the employees’ exposure to someone with COVID-19, employers also may require returning employees to test negative for COVID-19 before returning to work, but may not require a negative test simply because the employees have taken FFCRA leave.
2. The DOL explains the interplay between FFCRA leave and a furlough.  Specifically, the guidance provides that, if an employee uses FFCRA leave prior to being furloughed, the employee may use the remaining allotment of leave (up to 80 hours of sick leave; up to 12 weeks of family and medical leave) after the furlough ends – i.e., the furlough does not count as time on leave.
3. The DOL makes it clear that an employer may not extend an employee’s furlough simply because the employee would have to take FFCRA leave if called back to work.  Basing an employment decision – such as a decision regarding which employees to recall from furlough – on an employee’s exercise of FFCRA rights would amount to discrimination or retaliation.

You can read more about the FFCRA here and you can read the updated FFCRA Q&A here.

Updated FLSA Guidance

1. The DOL reminds employers that, in accordance with the FLSA, they must compensate employees for all hours worked, including overtime hours, even when employees work those hours away from the primary work site (i.e., telework).  Compensation is necessary even for hours that employers did not authorize, if the employers knew or had reason to know that the work was performed.  In most cases, employers may satisfy their obligation to compensate teleworking employees by providing reasonable time-reporting procedures and compensating employees for all reported hours.
2. The DOL assures employers that, if they provide flexibility during the workday to teleworking employees with child care or other family obligations, they are responsible for compensating employees only for the hours actually worked.  Under the regulations and continuous workday guidance of the DOL’s Wage and Hour Division, all time between the performance of the first and last principal activities of a workday generally is compensable work time.  However, in the FFCRA rulemaking, the DOL stated that an employer that allows employees to telework with flexible hours during the COVID-19 pandemic does not have to count as hours worked all the time between an employee’s first and last principal activities in a workday.  Thus, if an employer and employee agree to a telework schedule of 7 a.m. to 10 a.m., 1:00 p.m. to 3:00 p.m., and 5:30 p.m. to 8:00 p.m. on weekdays, the employer would pay for 7.5 hours, not all 13 hours between the first and last principal activities.
3. With respect to executive, administrative, or professional employees who are exempt from the FLSA’s minimum wage and overtime requirements:
   • They temporarily may perform non-exempt duties during the COVID-19 pandemic without losing their exemption, as long as they continue to be paid on a salary basis at least $684 per week.
   • Taking leave under the FFCRA will not impact their exempt status.
   • Prospectively reducing their salaries during the COVID-19 pandemic will not result in the loss of exempt status, as long as they receive on a salary basis at least $684 per week.

4. Hazard pay is not required under the FLSA, but may be imposed by state or local laws.

You can read the updated FLSA Q&A here.

Updated FMLA Guidance

1. Until December 31, 2020, the DOL’s Wage and Hour Division will consider telemedicine visits to be in-person visits for purposes of establishing a serious health condition under the FMLA, as long as the telemedicine visit includes an examination, evaluation, or treatment by a health care provider; is performed by video conference; and is permitted and accepted by state licensing authorities.
2. The DOL also advises that the FMLA does not prohibit an employer from requiring an employee to have a COVID-19 test prior to returning to work even if the employee’s reason for taking FMLA was unrelated to COVID-19.  FMLA leave does not protect employees from actions that an employer would have taken if an employee was not on leave.

You can read the updated FMLA Q&A here.