Legal Alerts

COVID-19 Response: U.S. Department of Labor Issues FAQs Regarding the FLSA and FMLA During Public Health Emergencies

Washington, D.C. (March 18, 2020) - The United States Department of Labor (DOL) has issued frequently asked questions for coronavirus-related workplace issues under the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA). We discuss below some of the key points for employers to be mindful of in this difficult time. In large part, the guidance merely recaps the basic principles of which employers must be mindful at all times.

Note that the FMLA requirements may soon be supplemented by emergency legislation being considered by the Senate, particularly as to paid sick leave, which is not presently mandated by federal law.

The Fair Labor Standards Act FAQs

The FAQs remind employers that the basic premise of the FLSA for hourly workers remain intact. The FLSA requires employers to pay non-exempt workers at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek, but does not require them to pay employees who are not working:

  • The FAQ recites the recognized rule that, beyond paying hourly employees for the hours actually worked, employers are under no obligation to pay such employees who work a partial week because the employer’s business closed. In other words, employers need not pay hourly employees for hours the employees would have otherwise worked on their normal schedules. If an employer shifts to a work from home regime, the employer need not pay an hourly employee who is unable to work from home because that employee is not actually performing work.
     
  • The rules are different for salaried exempt employees. Such employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions. Employers must remember not to make deductions from the predetermined compensation for absences due to office closures during a week in which the employee performs any work; violating that rule may defeat exempt status.

    If the employer requires that such employees take vacation or leave bank deductions during office closures, the FLSA does not prevent an employer requiring that accrued leave or vacation time be taken on specific days. The employer must make payment in an amount equal to the employee’s guaranteed salary.
     
  • Employers can require employees to perform work outside of the employee's job description generally and during such emergencies.
     
  • Employers may encourage or require employees to telework (i.e., work from an alternative location such as home) as an infection control strategy. Such telework may be a reasonable accommodation under the Americans with Disabilities Act (ADA) for disabled employees. Potential work from home issues include:
     
    • Employers may implement telework or other flexible work arrangements allowing work from home. But for non-exempt employees the employer must still maintain accurate records of hours worked and pay no less than the minimum wage and overtime when applicable. 
       
    • Employees may not be required to cover any additional costs that employees may incur if they work from home (internet access, computer, additional phone line, increased use of electricity, etc.) if doing so reduces the employee's earnings below the required minimum wage or overtime compensation.
    • Employers may not require employees to pay or reimburse the employer for such items if telework is being provided to a qualified individual with a disability as a reasonable accommodation under the ADA.

Family and Medical Leave Act FAQs

The FAQs remind employers of the basic rules under the FMLA.

Employees are eligible to take FMLA leave if they work for a covered employer and (i) have worked for their employer for at least 12 months; (ii) have at least 1,250 hours of service over the previous 12 months; and (iii) work at a location where at least 50 employees are employed by the employer within 75 miles. Employers must grant leave to an employee who is sick or who is caring for a family member that is sick under specified circumstances.

Eligible employees of covered employers may take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons. Employees on FMLA leave are entitled to the continuation of group health insurance coverage under the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period.

As to the application of these principles in the current health crisis:

  • If the coronavirus creates a “serious health condition” as defined by the FMLA, leave may be available.
     
  • If employees who are parents or care givers need time off from work to care for sick children, parents, or spouses, they may be entitled to leave under the FMLA if the virus complications create a “serious health condition” as defined by the FMLA.
     
  • While employers should encourage sick employees to stay home, most sick employees would not be protected by the FMLA. Nevertheless, the DOL encourages employers to be flexible regarding granting such leave even if not required.
     
  • The FMLA does not protect employees who take off from work to care for healthy children or any family member who does not have a serious health condition. Again, the DOL encourages flexibility given the current emergency situation.
     
  • The FMLA does not obligate employers to pay employees while they are on leave. However, for FMLA-protected leave, the employee may elect or the employer may require the substitution of paid sick and paid vacation/personal leave in some circumstances. State and local laws, collective bargaining agreements and other contracts and policies may give rise to greater employee rights to compensation while absent.

The DOL guidance goes beyond the scope of the FMLA by suggesting that employers create a plan or policy for sending sick employees home, while reiterating that any employer that does so should be careful to comply with the laws prohibiting discrimination in the workplace on the basis of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status:

  • The ADA prohibits discrimination against employees who are disabled, regarded as disabled or have a record of a disability. But it is permissible to exclude a disabled employee from the workplace if the employer has objective evidence that the employee poses a direct threat (i.e., significant risk of substantial harm) and determines that there is no available reasonable accommodation (that would not pose an undue hardship) to eliminate the direct threat.
     
  • Employers generally may require employee who are out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work. Nevertheless, the DOL encourages employers to be flexible since healthcare resources may be overwhelmed and obtaining such confirmation of illness may be difficult or impossible. The ADA also permits employers to impose conditions on employees returning from leave, but again flexibility is encouraged in the present environment. While the DOL is not the agency empowered to enforce the ADA (that would be the EEOC), the advice that flexibility is desirable appears to be sound.
     
  • Generally, the FMLA provides that (i) employees seeking to use FMLA leave should provide 30-day advance notice of the need to take leave when the need is foreseeable and such notice is practicable, and (ii) employers may seek medical certification and periodic reports as provided by the FMLA. The DOL encourages flexibility as to those requirements given the potentially overwhelmed healthcare industry.  Employers would be well advised not to prohibit a leave request based on employee or family member becoming stricken with the virus on the grounds that advance notice should have been given.

Employers should note that legislation currently being considered by Congress is likely to extend coverage for time absent from work time during the current health crisis by mandating certain paid leave. Further, state wage and hour and leave laws must also be considered where applicable.

Lewis Brisbois has formed a COVID-19 Attorney Response Team to help your business with the myriad legal issues arising from the outbreak. Visit our COVID-19 Response Resource Center to find an attorney in your area.

Author:

Peter T. Shapiro, Partner

Editor:

Michael D. Thompson, Partner

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