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

May 6, 2021
May 6, 2021 Update. On April 26, 2021, the U.S. Department of Labor (“DOL”) announced the Essential Workers, Essential Protections initiative (the “Initiative”) to provide workers who have been deemed “essential” during the COVID-19 pandemic additional information about applicable wage and hour laws that protect them and resources for contacting the DOL. Specifically, the Initiative is designed to educate workers on the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”). As part of the Initiative, the DOL launched an Essential Protections During the COVID-19 Pandemic website that provides links to resources on issues employers and employees may face during the COVID-19 pandemic, including on topics such as “Questions about your pay,” “Questions about break time for nursing mothers,” and “Questions about time off from work if you or a family member are sick.” The DOL will also be hosting a series of webinars nationwide to educate worker advocates, employers, and other stakeholders answering questions that have arisen during the pandemic. The Initiative also provides updated Questions and Answers pages related to the FLSA and the FMLA. Our blog post on the Initiative is available here.

September 25, 2020 Update. On September 21, 2020, the DOL provided additional guidance regarding COVID-19 and the FLSA in its Questions and Answers document. The new guidance provides information about how hazard payments may affect overtime calculations and is incorporated in the overall summary of the Questions and Answers set forth below.

September 17, 2020 Update. On September 16, 2020, the DOL published revisions and clarifications to its Temporary Rule (“Rule”) implementing the provisions of the Families First Coronavirus Response Act (“FFCRA”). Additionally, on September 11, 2020, the DOL updated its FFCRA Questions and Answers document to reflect these changes. These revisions are in response to the United States District Court for the Southern District of New York’s August ruling which vacated certain provisions of the DOL’s initial temporary rule. The revised Rule: (i) affirmed that FFCRA leave may only be taken if the employee has work from which to take leave; (ii) affirmed that, where intermittent FFCRA leave is permitted, an employee must obtain employer approval; (iii) revised the definition of “health care provider” to be consistent with the FMLA; (iv) clarified that an employee should provide to its employer information supporting his or her need for leave as soon as practicable; and (v) corrected an inconsistency regarding when an employee may be required to give notice of his or her intention to take leave under the FFCRA. The revised Rule became effective upon publication. The below post has been updated to reflect these changes and our updated memorandum on the Rule is available here.

September 4, 2020 Update. On August 27, 2020, the DOL issued guidance on the FFCRA and school reopenings. Our blog post on the guidance is available here.

August 7, 2020 Update. On August 3, 2020, the Southern District of New York issued a decision in New York v. U.S. Dep’t of Labor, No. 20-cv-3020 (S.D.N.Y. Aug. 3, 2020) (Oetken, J.) that vacated certain provisions of the DOL rule implementing the provisions of the FFCRA. Specifically, the decision vacated provisions of the rule that (i) prohibited employees from taking leave if an employer “does not have work” for the employee; (ii) defined “health care providers”; (iii) required employer consent for taking intermittent leave; and (iv) required employees to provide documentation related to their leave prior to taking that leave. The remaining provisions of the rule are unaffected. Notably, the Court was silent on whether its decision applies to jurisdictions other than the Southern District of New York. The content below was not impacted by the Court’s decision. A more detailed discussion of the decision’s impact on the rule implementing the FFCRA can be found in our client memorandum, “U.S. Department of Labor Issues Regulations Implementing the Families First Coronavirus Response Act’s Leave Provisions.”

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On July 20, 2020, the DOL provided additional guidance in its Questions and Answers documents regarding COVID-19 and (i) the FLSA, (ii) the FMLA, and (iii) the leave provisions of the 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.
    • Computation of Overtime Pay. Hazard payments paid by an employer constitute compensation for employment that must be included in an employee’s regular rate, and should therefore be included when calculating overtime pay. Government-provided incentive payments paid directly to employees without the employer’s involvement are not compensation for employment, and therefore such payments should not be included when calculating overtime pay, unless there exists an implicit or explicit agreement between an employer and an employee to treat government-provided incentive payments as compensation for employment. An employer that merely acts as an intermediary to distribute government-provided incentive payments need not include those payments when calculating overtime pay.
    • Implicit Agreements to Treat Government-Provided Incentive Payments as Compensation For Employment. An implicit agreement to treat government-provided payments for work performed during the COVID-19 emergency as compensation does not exist merely because an employer permits employees to participate in the government’s program. Rather, an employer’s involvement in the government’s incentive-payment program must amount to significantly more than serving as a pass-through vehicle. The employer’s involvement in the creation, management, and payment of the government program must be so substantial that the employees legitimately understand that the employer is effectively sponsoring the government-provided incentive payments.
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 continues to update and provide additional guidance in its Questions and Answers document. Our other posts on the guidance are available here:  Part I, Part IIPart III, and Part IV. 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