U.S. Department of Labor Issues New COVID-19 Guidance on FLSA, FMLA, and FFCRA Leave

July 23, 2020
On July 20, 2020, the Department of Labor’s Wage and Hour Division (“DOL”) provided additional guidance in its Questions and Answers documents regarding COVID-19 and (i) the Fair Labor Standards Act (“FLSA”), (ii) the Family and Medical Leave Act (“FMLA”), and (iii) the leave provisions of the Families First Coronavirus Response Act (“FFCRA”).
 
COVID-19 and the FLSA
 
The DOL provided additional guidance in its Questions and Answers document regarding COVID-19 and the FLSA concerning telework, exempt employees under the FLSA, and hazard pay.
  • Telework. An employer is required by the FLSA to compensate a non-exempt employee “for all hours of telework actually performed away from the primary worksite, including overtime work” if the employer “knew or had reason to believe the work was performed,” even if the work time was unauthorized, and even if the employee did not report the work time. An employer, however, is not required to compensate a non-exempt employee “for unreported hours of telework” that the employer did not know nor had reason to believe was performed.
    • Time Reporting Procedures. Generally, an employer may satisfy its obligation under the FLSA to compensate a teleworking non-exempt employee “by providing reasonable time-reporting procedures and compensating that employee for all reported hours.”
    • Flexible Schedules. An employer that allows a non-exempt employee “to telework with flexible hours during the COVID-19 emergency” is required to compensate that employee “for all hours actually worked,” but is not required to count as hours worked “all time between the performance of the first and last principal activities of a workday.”
       
  • Exempt Employees. A salaried executive, administrative, or professional employee who is exempt from the FLSA’s minimum wage and overtime requirements under Section 13(a)(1) “may temporarily perform nonexempt duties” that are required by the COVID-19 public health emergency without losing the exemption, “as long as he or she continues to be paid on a salary basis of at least $684 per week.”
    • Reduction in Pay. An otherwise exempt employee will not lose his or her status as exempt if (i) they take leave under the FFCRA, or (ii) their employer reduces their salary during the COVID-19 pandemic or an economic shutdown, as long as they “still receive on a salary basis at least $684 per week.” Any reduction in salary “must be predetermined rather than an after-the-fact deduction” based on the employer’s needs, and must be “bona fide” (that is, “not an attempt to evade the salary basis requirements and is actually because of COVID-19 or an economic slowdown,” and not because of the “quantity or quality of work” that the employee performed).
       
  • Hazard Pay. The FLSA does not require hazard pay during the COVID-19 pandemic; however, state or local law may require hazard pay in certain circumstances.
     
COVID-19 and the FMLA
 
The DOL also provided additional guidance in its Questions and Answers document regarding COVID-19 and the FMLA concerning telemedicine and COVID-19 tests.
  • Telemedicine. Until December 31, 2020, telemedicine visits—that is, face-to-face examinations or treatment of patients by remote video conference—will be considered “in-person visits,” and electronic signatures will be considered signatures, “for purposes of establishing a serious health condition under the FMLA.” To qualify as an in-person visit, a telemedicine visit must: (i) “include an examination, evaluation, or treatment by a health care provider”; (ii) “be performed by video conference”; and (iii) “be permitted and accepted by state licensing authorities.”
     
  • COVID-19 Tests. If an employer implements a policy requiring all employees to take a COVID-19 test before returning to the office, the FMLA does not prohibit that testing requirement for an employee who was taking FMLA leave unrelated to COVID-19 at the time the employer implemented that policy. In determining whether to require COVID-19 tests for employees, employers should consider whether there are other restrictions on COVID-19 testing, including state or local guidelines or other federal guidance, such as the Americans with Disabilities Act.
 
FFCRA Leave Provisions
 
The DOL posted guidance on the leave provisions of the FFCRA in the form of updated Questions and Answers. Our prior posts addressed the previously issued FFCRA guidance and are available here:  Part I, Part II, and Part III. The new guidance addresses returning to work after leave, the interaction of leave entitlement and furlough, and the prohibition on retaliation for taking or attempting to take FFCRA leave.
  • Returning To Work After Leave. Generally, an employer must restore an employee returning from FFCRA leave “to the same or an equivalent position,” subject to certain limited exceptions. An employer who is concerned about an employee’s “potential exposure to an individual with COVID-19” may “temporarily reinstate” such an employee “to an equivalent position requiring less interaction with co-workers” or require the employee to telework. Further, an employee returning from FFCRA leave “must comply with job requirements” unrelated to such leave, such as the requirement that an employee telework or take leave until testing negative for COVID-19 if that employee interacted with a COVID-infected person. An employer may not, however, require that an employee telework or be tested for COVID-19 “simply because” the employee took FFCRA leave.
     
  • Interaction of Leave Entitlements and Furlough.
    • Sick Leave. An employee who used 80 hours of paid sick leave under the FFCRA before he or she was furloughed is not entitled to any additional paid sick leave under the FFCRA after returning from furlough, as each individual is limited to 80 hours total of paid sick leave under the FFCRA. However, an employee who takes fewer than 80 hours of paid sick leave under the FFCRA is entitled to take the balance after returning from furlough, if he or she has a COVID-19 qualifying reason.
    • Expanded Family and Medical Leave. An employee who used a portion of his or her 12 weeks of expanded family and medical leave under the FFCRA before he or she was furloughed is entitled to take the balance after returning from furlough, if he or she has a COVID-19 qualifying reason. The weeks an employee was furloughed “do not count as time on leave.” Further, because the reason an employee needs leave may have changed during the furlough, an employer “should treat a post-furlough request . . . as a new leave request,” including by requiring the appropriate documentation.
       
  • Prohibition on Retaliation. An employer may not discriminate or retaliate against an employee or prospective employee “for exercising or attempting to exercise their right” to take FFCRA leave. An employer may not use an employee’s request for FFCRA leave, or the employer’s assumption that an employee may request FFCRA leave, “as a negative factor in an employment decision, such as a decision as to which employees to recall from furlough.”
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The Coronavirus situation is fluid, and laws are changing rapidly. Our recent memoranda and other information discussing various aspects of Coronavirus can be found here.

DOL Wages and Overtime