Tue, 07/21/2020
The Department of Labor (“DOL”) published guidance for workers and employers on July 20, 2020, further detailing how the protections of the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), and the Families First Coronavirus Response Act (“FFCRA”) impact workplaces during the on-going coronavirus pandemic.
In a statement accompanying the guidance, Wage and Hour Division (“WHD”) Administrator Cheryl Stanton, said “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.” She further commented, “[w]ith 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.”
DOL’s FLSA guidance, for example, recognizes an exception to the general “continuous workday” rule, which requires compensation for all time between the performance of a worker’s first and last principal activities of a workday, if an employer allows an employee to telework with flexible hours during the COVID-19 pandemic. According to DOL, if an employer allows workers to telework with flexible hours, the employer does not need to count as hours worked all time between the employee’s first and last principal activities in a workday. The DOL advised: “assume you and your employee agree 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.” DOL’s COVID-19 and the Fair Labor Standards Act Questions and Answers is available at: https://www.dol.gov/agencies/whd/flsa/pandemic.
The guidance on the FMLA clarifies that, until December 31, 2020, WHD will consider telemedicine visits – face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices – to be in-person visits to establish a “serious health condition” under the FMLA. The guidance advises that, 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.
With respect to employees who take FMLA for reasons unrelated to COVID-19, the guidance also clarifies that returning workers are “not protected from actions that would have affected you if you were not on FMLA leave.” Thus, according to DOL, if an employer requires everyone to take a COVID-19 test before they enter the office, the worker returning from FMLA leave must take the same test, although the guidance does not address whether such testing may be prohibited by other laws.
DOL’s full COVID-19 and the Family Medical Leave Act Questions and Answers is available at: https://www.dol.gov/agencies/whd/fmla/pandemic.
Finally, DOL issued additional guidance on the leave requirements of the FFCRA. The guidance clarifies that if an employee is furloughed – either due to lack of work or because the worksite closes – on or after April 1, 2020, that employee is not entitled to paid sick leave or expanded family and medical leave under the FFCRA, and that workers whose hours are cut are not entitled to use paid sick leave or expanded family and medical leave for hours they are no longer scheduled. However, the guidance also clarified that an employer who is returning employees to work from furlough cannot extend an employee’s furlough because the worker would need FFCRA leave to care for a child, emphasizing that an employer “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.”
The guidance also confirms that an employee returning from paid sick leave under FFCRA has a right to be restored to the same or an equivalent position to the one they held before taking leave. However, an employer can temporarily assign the worker to an equivalent position requiring less interaction with co-workers or require that he telework if the employee has potentially been exposed to COVID-19 (i.e., took paid sick leave to care for someone advised to self-quarantine because of COVID-19 symptoms). The guidance also makes clear that “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,” but “may not require the employee to telework or be tested for COVID-19 simply because the employee took leave under the FFCRA.”
The full guidance, Families First Coronavirus Response Act: Questions and Answers, is available at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.
If you believe your employer has violated your FLSA, FMLA, or FFCRA rights during the COVID-19 pandemic, please contact MSE at info@mselaborlaw.com
