Coronavirus Information - General
COVID-19 Resources for All Workers
Below you will find information on the benefits that may be available to all workers during the COVID-19 pandemic. If you have any questions about any labor and employment law issue related to the ongoing pandemic, please contact us here or at info@mselaborlaw.com.
We are here to do our part in mitigating the damage of this virus, so we plan to keep you informed of your rights and will continue to publish information as the situation develops.
Teleworking and the FLSA
Despite this new normal, how teleworking affects the FLSA’s rules concerning overtime and minimum wage is unfamiliar territory for many. In general, the FLSA still prohibits employees from “volunteering” their time, even if they are working from home. Some other common questions are covered below:
What if my work takes longer than usual?
Working from home might not be as productive as working from the comforts of the office. The FLSA requires employers to pay overtime for hours actually worked, so if a task that normally takes an hour in the office takes two hours at home, those two hours must still be counted as work time.
UPDATE: On August 24, 2020, the Department of Labor issued a new Field Assistance Bulletin setting out additional guidance for determining when overtime work must be compensated.
As the Department of Labor explains, “[a]n employer is required to pay its employees for all hours worked, including work not requested but suffered or permitted, including work performed at home.” An employer bears the burden to prevent work from being performed if it is not desired, and “[t]he mere promulgation of a rule against such work is not enough.” Also, even if an employer establishes a reasonable overtime reporting procedure and an employee “fails to report” overtime work, it may still be compensable: “[i]f the employer knows or has reason to believe that the work is being performed, he [or she] must count the time as hours worked.” (emphasis added).
Am I being paid above the minimum wage?
Some employers may choose to reduce hourly wages for employees working from home, if not prohibited by collective bargaining agreement or state law. Be aware that the FLSA prohibits employers from paying covered employees less than the $7.25/hour minimum wage. Some state laws require higher minimum wage. (Additional information from the Department of Labor on minimum wage is available here.)
Should I be paid for my travel time (if I still have any)?
Normally, time spent commuting to the office is not “compensable” work under the FLSA unless certain uncommon conditions are met. However, once employees begin a “continuous workday,” travel time within that continuous workday is compensable work time that should be paid and counted towards the overtime threshold. Some employees who are not normally paid for their commute may be entitled to pay for their travel time if, for example, they begin their continuous workday at home and then are asked to travel to their workplace during the day.
Is my employer keeping track of my hours and pay?
The FLSA requires employers to keep certain employment records for non-exempt employees, including employees’ hours of work, rates of pay, and straight-time/overtime compensation. Employees should check that their employers have not dropped the ball in keeping up with the FLSA’s record-keeping requirements.
Am I still an overtime “exempt” employee?
Certain employees are exempt from the FLSA’s overtime requirements, but the recent change in circumstances may upend employers’ classifications of their employees as “exempt” or “non-exempt.”
For example, the “professional” exemptions from the FLSA rely, in part, on whether an employee’s “primary duty” is performing exempt work. As workplaces have shut down and employers have chosen to layoff or furlough many of their employees, exempt employees have taken on new responsibilities. Exempt employees whose job duties have shifted substantially during the COVID-19 crisis, may be entitled to overtime pay if their primary duty is no longer an exempt one. (Additional information from the Department of Labor on overtime exemptions is available here.)
Salaried, exempt employees must be paid their salaries for the entire workweek if they perform any work within that week. Employers who dock employees’ pay for missed hours of work or who pay employees only an hourly rate for work performed at home may be unable to claim an overtime exemption under the FLSA for those employees. (Additional information from the Department of Labor on the “salary basis test” is available here.)
If you think your employer has violated the Fair Labor Standards act, please contact MSE at info@mselaborlaw.com.
Family First Coronavirus Response Act
According to the Bureau of Labor Statistics (“BLS”), in February 2020, the civilian labor force (Americans who have jobs or are seeking a job, are at least 16 years old, are not serving in the military, and are not institutionalized) amounted to almost 160 million workers. On April 1, 2020, the Department of Labor issued temporary rules relating to the Families First Coronavirus Response Act (“FFCRA”), which requires employers to provide paid sick leave to and expands family and medical leave for employees who are unable to work due to COVID-19. Unfortunately, these temporary rules extend the FFCRA’s protections to just 61 million workers, allowing employers to deny paid sick leave and the other benefits of the FFCRA to almost 100 million workers. The DOL’s rules are available on its website.
The gaps in the protections offered by the FFCRA fall into multiple categories:
- The FFCRA allows employers to exempt “health care providers” from coverage. DOL’s rules encourage interpreting this term as broadly as possible, defining “health care providers” as anyone who works for a “health care facility,” such as a doctor’s office, nursing home, or hospital as well as pharmacies, laboratories, and medical testing facilities. This definition – which is broader than the same term is defined in the Family and Medical Leave Act – will allow employers to exempt workers like janitors, data entry clerks, and receptionists from the Act’s protections.
- The FFCRA allows employers to exempt “emergency responders” from coverage. DOL’s rules also encourage interpreting this term as broadly as possible, and specifically reference public works employees and child welfare workers as “emergency responders.”
The temporary rule also contains other employer-friendly provisions, including:
- Excluding employees who are not able to work due to a quarantine, isolation, or stay-at-home order. For example, DOL’s rules conclude that if a business is closed due to a downturn in business as a result of COVID-19, or a stay-at-home order, an employee who is not able to work due to a stay-at-home order is not entitled to paid sick leave. An employee who is able to telework, however, but prevented from doing so by an extenuating circumstance (such as a power outage) is entitled to FFCRA paid sick leave. Thus, the DOL rules deny paid sick leave to those employees least likely to have it.
- Sick leave for time spent “seeking diagnosis” of a possible COVID-19 infection is limited to time the employee cannot work because they are affirmatively seeking a diagnosis, such as making, waiting for, or attending a testing appointment. This definition does not appear to apply to time an employee is unable to work because they are passively waiting to take a COVID-19 test or for test results.
- Allowing a small business to self-determine whether it is entitled to the small business exemption to the paid sick leave requirement.
- Allowing employers to substitute existing paid leave for paid expanded family and medial leave while still receiving the tax credit.
Finally, the temporary rules impose notice procedures on workers who seek to take either paid sick leave or extended family and medical leave pursuant to the FFCRA.
OSHA Whistleblower Protections
If, after reporting a violation of law or an unsafe working condition, an employer fires, disciplines, or takes some other action against the reporting employee, that employee may be protected by OSHA’s general whistleblower protection provision, more specific whistleblower protection laws, one of the more than 20 whistleblower statutes OSHA enforces, or applicable state laws. In addition to OSHA or OSHA-enforced statutes, certain states may have specific whistleblower protection laws for reporting workplace violations of laws or health codes relating to COVID-19.
There are four things workers must keep in mind when seeking whistleblower protections. In order to prevail on a whistleblower claim, employees must show:
1) that they engaged in an activity, like reporting a violation of law or an unsafe condition, covered by whistleblower protection laws. These kinds of actions can include (but are not limited to):
- filing a report about a possible violation of the law with OSHA or other government agency;
- reporting a concern about a possible violation of the law to the employer;
- reporting a workplace injury, illness, or hazard;
- cooperating with law enforcement; or
- refusing to conduct tasks that would violate the law.
2) that their employer knew about, or suspected, that they were engaged in an activity such as one outlined in (1) above;
3) that the employer took an “adverse action” against the employee, such as (but not limited to):
- firing or demoting;
- disciplining;
- reassigning to a less desirable position; or
- reducing pay or hours.
4) that the employee’s engagement in activities such as those listed in (1) above motivated or contributed to the employer’s adverse action such as those in (3).
While reporting a violation of law or unsafe condition to OSHA in most cases is confidential, whistleblower complaints filed with OSHA cannot be filed anonymously. Additionally, not all suspected employer health violations will be actionable, nor will all employer actions against an employee for reporting suspected violations result on whistleblower protections. Because of the challenges associated with the pandemic, OSHA has stated that it will be “providing enforcement flexibilities for specific provisions of certain standards,” meaning that enforcement of some regulations may be relaxed to account for the challenges of compliance with pandemic-related measures.
If you believe that your employer has retaliated against you for making a report about an unsafe working condition during the coronavirus pandemic, please contact MSE at info@mselaborlaw.com.
Collective Bargaining Agreement Guidance Issued by NLRB
As the National Labor Relations Board (NLRB) recently made clear, COVID-19 is not a blank check for employers to abandon their duty to bargain. On March 27, 2020, NLRB General Counsel issued guidance addressing the duty to bargain in emergency situations. The guidance includes case summaries highlighting the NLRB’s treatment of the duty to bargain during both public emergencies and economic emergencies specific to individual businesses.
While these summaries do not answer all questions, they provide some helpful guideposts that unions and workers can and should rely on to protect their rights.
The NLRB has limited “economic exigencies” to “extraordinary events which are an unforeseen occurrence, having a major economic effect requiring the company to take immediate action.” Seaport Printing & AD Specialties, Inc., 351 NLRB 1269, 1269 (2007). For example, in K-Mart Corp., 341 NLRB 702, 720 (2004), the NLRB found that the employer’s decision to lay off employees without bargaining was justified by its need to take immediate action where its anticipated business volume plunged by 60 percent following the attacks on September 11, 2001, and the company had to file for bankruptcy shortly thereafter.
Conversely, the NLRB found that “economic exigencies” did not exist in other circumstances:
- Seaport Printing & AD Specialties, Inc., 351 NLRB 1269 (2007). A hurricane required a mandatory evacuation of a city, which caused an employer to close operations and lay off all employees. After the hurricane, the employer used both unit and non-unit employees to repair the damage to its facility, but also sent a letter confirming the permanent layoffs to unit employees. The NLRB found that the initial layoffs were justified by the emergency exception, but that the employer unlawfully failed to bargain over the effects of the layoffs and the use of non-unit employees to perform unit work.
- Dynatron/Bondo Corp., 324 NLRB 572, 578-79 (1997). A two-day power outage caused by a hurricane was insufficient to justify implementing a new employee compensation policy without bargaining.
The NLRB has emphasized that, even where an emergency exception may apply, the employer may still be required to engage in so-called effects bargaining. For example, in Cyclone Fence, Inc., 330 NLRB 1354 (2000), the NLRB concluded that while the “emergency situation” the employer confronted might excuse its failure to bargain with respect to the decision to close its operations (including firing all employees at that location and failing to pay wages and fringe benefits, it did not excuse the employer’s failure to bargain over the closing’s effects.
The important takeaway is that each case requires a fact specific inquiry. In Gannet Rochester Newspapers, 319 NLRB 215 (1995), for example, after an ice storm, union employees from two separate bargaining units were required to miss two days of work due to a ban on nonessential travel. The employer unilaterally required employees from both units to either take personal days or go uncompensated.
The NLRB found that, for one set of unit employees subject to a collective bargaining agreement that contained a “zipper” clause privileging the employer’s refusal to bargain on uncovered subjects during the life of the contract, there was no violation, as that contract did not speak to compensation for missed work due to weather emergencies. The NLRB, however, found a violation for the other set of unit employees, as their collective bargaining agreement had expired during the time of the emergency. Therefore, the employer was required to bargain because wages for lost time due to a weather emergency are a mandatory subject of bargaining.
In an emergent medical context, in Virginia Mason Hospital, 357 NLRB 564 (2011), the Board held that an employer violated the NLRA by unilaterally implementing a flu-prevention policy without affording the Union notice and an opportunity to bargain. This policy required all nurses who had not received a flu immunization shot to either take antiviral medication or wear a protective mask. Although the NLRB found a violation, the guidance of the General Counsel highlighted the dissenting member’s opinion that the action should have been lawful under the “core purpose of its enterprise” test set forth in Peerless Publications, 283 NLRB 334 (1987), as: (1) the policy went directly to the employer’s core purpose: to protect patient’s health; (2) the policy was narrowly tailored to prevent the spread of influenza; and (3) the employer limited the requirement to nurses who refused to be immunized.
If you believe that your employer failed to negotiate over changed terms and conditions of employment due to COVID-19, contact MSE at info@mselaborlaw.com.
Unemployment Benefits
If you have been laid off as a result of the novel coronavirus, you may be eligible for unemployment benefits. Private and public sector employees, including federal employees, must file for unemployment benefits with the appropriate agency in your state of residence.
Under the Relief for Workers Affected by Coronavirus Act, which is part of the CARES Act enacted on March 27, 2020, workers who are not typically eligible for unemployment benefits, including part-time employees and self-employed individuals, are now eligible for benefits if they are unable to work due to circumstances related to COVID-19. In addition, individuals receiving unemployment benefits will be paid an additional $600 per week as “Federal Pandemic Unemployment Compensation” through July 31, 2020.
Further, the Emergency Unemployment Insurance Stabilization and Access Act of 2020, enacted on March 18, 2020 and effective April 1, 2020, allocates $1 billion in grants to states to cover increased claims for unemployment compensation benefits. States will also be required to take steps to ease eligibility for and access to unemployment compensation benefits, including but not limited to easing work search requirements or waiting weeks on an emergency basis as needed to respond to the spread of COVID-19.
Further information on eligibility and filing for unemployment benefits is available through the Department of Labor at the following website: https://www.careeronestop.org/localhelp/unemploymentbenefits/unemployment-benefits.aspx.
Family and Medical Leave Act Expansion
The Families First Coronavirus Response Act (“FFCRA”) requires specified employers to provide expanded family and medical leave to employees for reasons related to COVID-19. The Act was signed into law by President Trump on March 18, 2020, and will become effective on April 1. The Act sunsets on December 31, 2020.
The FFCRA expands an employee’s entitlement to Family and Medical Leave Act (“FMLA”) leave to situations where an employee requires an absence from work “due to a qualifying need related to a public health emergency,” which includes situations where an employee is “unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”
Importantly, while this expansion applies to many employees in the private sector, it does not apply to most federal employees because the FFCRA amends Title I of the FMLA and most federal employees are covered by Title II.
If an employee is unable to work because of a “qualifying need related to a public health emergency,” the FFCRA provides that the first ten days of any such leave can be unpaid, but that the remaining days of leave (i.e., fifty workdays) shall be paid at an amount that is not less than two-thirds of the employee’s regular rate of pay multiplied by the number of hours they would otherwise be scheduled to work, but an employer’s liability is not to exceed $200 per day (or $10,000 in total).
Further information about family and medical leave during the COVID-19 pandemic is available at the following websites:
- Employee Paid Leave Rights: https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave
- COVID-19 and the FMLA Questions and Answers: https://www.dol.gov/agencies/whd/fmla/pandemic
Emergency Paid Sick Leave
The Families First Coronavirus Response Act (“FFCRA”), enacted on March 18, 2020 and effective April 1, 2020, mandates that employees who are quarantined due to COVID-19 or experience symptoms of COVID-19 and are seeking a diagnosis are entitled to up to eighty (80) hours of paid sick leave. This paid leave is available to all employees, regardless of how long they have worked for their employer. This paid leave also applies to employees who cannot work or telework because they are subject to a Federal, State or local quarantine or isolation order related to COVID-19. An employee who qualifies for this paid sick leave is entitled to their regular rate of pay, not to exceed $511 per day ($5,110 in the aggregate).
The FFCRA also provides paid sick leave to employees who are unable to work (or telework) because they need to care for a son or daughter under 18 years of age if their school or daycare is closed due to COVID-19. An employee who qualifies for this paid sick leave is entitled to their regular rate of pay, not to exceed $200 per day ($2,000 in the aggregate).
Further information about employee paid leave rights under the FFCRA is available on the Department of Labor’s website here: https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave
Americans with Disabilities Act
The rights of employees under the Americans with Disabilities Act (ADA) are affected by the current COVID-19 pandemic.
First, an employer is permitted to screen job applicants for symptoms of COVID-19 after making a conditional job offer. However, the employer is required to screen all new hires for that position equally. Importantly, an employer cannot require you to take a COVID-19 test prior to making a conditional offer of employment.
In addition, while an employer cannot normally require a medical examination during your employment unless it is job-related and consistent with business necessity, employers can require testing for COVID-19 and need not accommodate individuals who test positive. This may include a requirement that employees have their body temperature tested. This is because, based on guidance from the CDC and public health authorities, employees with COVID-19 pose a direct threat to the health and safety of themselves or others in the workplace.
Similarly, an employer may require an employee to go home if they exhibit COVID-19 symptoms. If employees call-in sick during a pandemic, the employer is also permitted to ask questions about symptoms to determine if they may have COVID-19.
Further, when an employee returns to a job after being away from the workplace due to COVID-19 related issues or symptoms, the employer is permitted to require employees to provide a doctor’s note proving they are fit for duty, although the EEOC suggests that other methods of proving fitness-for-duty may be necessary given that doctors and health care professionals may be too busy during the pandemic to provide traditional fitness-for-duty evaluations.
If you have questions about your rights under the Americans with Disabilities Act during the pandemic, please contact us here or at info@mselaborlaw.com
Coverage of Testing for COVID-19
The Families First Coronavirus Response Act (“FFCRA”), enacted on March 18, 2020 and effective April 1, 2020, requires that health insurance providers provide coverage, without cost-sharing requirements such as copayments or deductibles and without prior authorization or medical management requirements, for diagnostic products necessary for the testing for COVID-19. In addition, the FFCRA prohibits cost-sharing and deductibles under Medicare for COVID-19 testing-related services. Further, under the CARES Act, health insurance provides must cover the cost of any coronavirus-related preventive services, including vaccines.
Loans to Businesses
Under the CARES Act, enacted March 27, 2020, certain businesses are eligible for loans to enable them to retain workers by ensuring uninterrupted payment of wages and continuation of coverage for payroll costs and health insurance.
More information is available here: https://www.sba.gov/page/coronavirus-covid-19-small-business-guidance-loan-resources