DOL Answers Employers’ Top Return to Work Questions in Latest Guidance

While employees are slowly returning to the workplace and many schools are set to reopen in the fall, the coronavirus (COVID-19) pandemic lingers...

While employees are slowly returning to the workplace and many schools are set to reopen in the fall, the coronavirus (COVID-19) pandemic lingers. Over the next several months, workers may need to take time off to care for themselves and/or family members suffering from COVID-19. Employees may also need to transition back to remote working if schools close or the virus forces new shutdowns.

To aid compliance with the numerous federal employment laws that may apply, the Department of Labor continues to issue new guidance. It’s latest guidance addresses how the protections and requirements of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA) affect the workplace as they being to reopen.

“The U.S. Department of Labor understands how critically American workers and employers need this information as they return to work. Continuing to provide it remains a top priority for the Wage and Hour Division,” DOL Wage and Hour Division Administrator Cheryl Stanton said in a press statement. “With so many workers and employers committed to the greatest comeback the American workforce has ever seen, we are providing ongoing guidance to help them better understand their rights and responsibilities to protect workers and help ensure a level playing field for employers as our economy recovers.”

Fair Labor Standards Act FAQs

The DOL has updated its COVID-19 and the Fair Labor Standards Act Questions and Answers to address issues related to remote working and the impact of the ongoing economic slowdown. Below are a few important questions that the DOL answered:

• 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?

Work performed away from the primary worksite, including at the employee’s home, is treated the same as work performed at the primary worksite for purposes of compensability. Therefore, you must compensate your employee for all hours of telework actually performed away from the primary worksite, including overtime work, in accordance with the FLSA, provided that you knew or had reason to believe the work was performed. This is true even of hours of telework that you did not authorize. You also must compensate your employee for unreported hours of telework that you know or have reason to believe had been performed. However, you are not required to compensate your employee for unreported hours of telework that you have no reason to believe had been performed, i.e., where you neither knew nor should have known about the unreported hours.  In most cases, you may satisfy your obligation to compensate your teleworking employee by providing reasonable time-reporting procedures and compensating that employee for all reported 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?

No. Under WHD’s broadly applicable regulation and its continuous workday guidance, all time between the performance of the first and last principal activities of a workday is generally compensable work time. However, the Department recognized that applying this guidance to the teleworking arrangement would discourage needed flexibility during the COVID-19 emergency. As such, the Department stated in the Family First Coronavirus Relief Act rulemaking that an employer that allows employees to telework with flexible hours during the COVID-19 emergency does not need to count as hours worked all the time between an employee’s first and last principal activities in a workday. For example, assume you and your employee agrees to a telework schedule of 7–9 a.m., 11:30–3 p.m., and 7–9 p.m. on weekdays. This allows your employee, for instance, to help teach their children whose schools are closed, reserving for work times when there are fewer distractions. Of course, you must compensate your employee for all hours actually worked—7.5 hours—that day, but not all 14 hours between your employee’s first principal activity at 7 a.m. and last at 9 p.m.

• 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? 

Yes, during the period of a public health emergency declared by a Federal, State, or local authority with respect to COVID-19, otherwise-exempt employees may temporarily perform nonexempt duties that are required by the emergency without losing the exemption. WHD’s regulations permit an employee who otherwise qualifies for a Section 13(a)(1) exemption to perform nonexempt duties during emergencies that “threaten 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. COVID-19 is a rare event affecting the public welfare of the entire nation that an employer could not reasonably anticipate and is consistent with the FLSA’s regulatory criteria for emergencies. Employees who are temporarily required to perform nonexempt duties due to COVID-19 may do so without losing the FLSA exemption, as long as they continue to be paid on a salary basis of least $684 per week.

Family and Medical Leave Act FAQs

The DOL also provided additional guidance via its COVID-19 and the Family and Medical Leave Act Questions and Answers. The latest additions to the FAQs address the use of telemedicine amid the COVID-19 pandemic as well as employer-mandated COVID-19 testing. Below are the two new FAQs:

• 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?

Yes. Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits, and will consider electronic signatures to be signatures, for purposes of establishing a serious health condition under the FMLA. To be considered an in-person visit, 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. This approach serves the public’s interest because health care facilities and clinicians around the nation are under advisories to prioritize urgent and emergency visits and procedures and to preserve staff personal protective equipment and patient-care supplies.

• 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?

The FMLA does not prohibit the employer’s testing requirement. When your FMLA leave is over, your employer must reinstate you to the same job or an equivalent position. However, you are not protected from actions that would have affected you if you were not on FMLA leave. For example, if a shift has been eliminated, or overtime has been decreased, you would not be entitled to return to work that shift or the original overtime hours. That principle also applies here, where your employer’s requirement for testing isn’t related to your having been out on FMLA leave but instead, all employees, regardless of whether they have taken any kind of leave, are required to be tested for COVID-19 before coming to the office. Other laws may impose restrictions on the circumstances when your employer can require COVID-19 testing, and what types of tests are permitted.

Families First Coronavirus Response Act FAQs

The DOL also updated its Families First Coronavirus Response Act: Questions and Answers. As discussed in prior blog posts, the new law requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. In its latest guidance, the DOL answered the following questions regarding the FFCRA:

• 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? 

It depends. In general, an employee returning from paid sick leave under FFCRA has a right to be restored to the same or an equivalent position, although exceptions apply -. However, due to the public health emergency and your employee’s potential exposure to an individual with COVID-19, you may temporarily reinstate him to an equivalent position requiring less interaction with co-workers or require that he telework. In addition, the employee must comply with job requirements that are unrelated to having been out on paid sick leave. For instance, a company may require any employee who knows he has interacted with a COVID-infected person to telework or take leave until he has personally tested negative for COVID-19 infection, regardless of whether he has taken any kind of leave. Such a policy would apply equally to an employee returning from paid sick leave. However, you may not require the employee to telework or be tested for COVID-19 simply because the employee took leave under the FFCRA.

• 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 work? 

No. Employees are limited to a total of 80 hours of paid sick leave under the FFCRA. If you had taken fewer than 80 hours of paid sick leave before the furlough, you would be entitled to use the remaining hours after the furlough if you had a qualifying reason to do so.

• 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? 

Under the FFCRA, your employee is entitled to up to 12 weeks of expanded family and medical leave. She used four weeks of that leave before she was furloughed, and the weeks that she was furloughed do not count as time on leave. When she returns from furlough, she will be eligible for eight additional weeks of leave if she has a qualifying reason to take it. Because the reason your employee needs leave may have changed during the furlough, you should treat a post-furlough request for expanded family and medical leave as a new leave request and have her give you the appropriate documentation related to the reason she currently needs leave. For example, before the furlough, she may have needed leave because her child’s school was closed, but she might need it now because her child’s summer camp is closed due to COVID-19-related reasons.

• 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? 

No. Employers may not discriminate or retaliate against employees (or prospective employees) for exercising or attempting to exercise their right to take leave under the FFCRA. If your employee’s need to care for his child qualifies for FFCRA leave, whether paid sick leave or expanded family and medical leave, he has a right to take that leave until he has used all of it. You may not use his request for leave (or your assumption that he would make such a request) as a negative factor in an employment decision, such as a decision as to which employees to recall from furlough.

Key Takeaway

As COVID-19 continues to pose compliance challenges for New York and New Jersey businesses, it is essential to stay on top of your obligations under state and federal law. We encourage employers to review the DOL’s guidance in its entirety and contact experienced labor counsel with any questions.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Maryam Meseha, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.