The Covid-19 pandemic presents employers with unprecedented challenges. Efforts to suppress the virus by working from home raises important questions about how to maintain compliance with a myriad of employment laws covering telecommuting, wage and hour, workers’ compensation, unemployment, disability, reasonable accommodation, layoffs and terminations, and OSHA reporting, among others.
Bressler’s Labor and Employment Law practice group has formed a COVID-19 Counseling Team to offer up-to-date guidance to employers on a 24/7 basis. In this first installment, we will briefly discuss guidance from the Wage and Hour Division (“WHD”) of the U.S. Department of Labor (“DOL”). The WHD provided two question-and-answer documents related to COVID-19. One of the documents deals with the Fair Labor Standards Act (FLSA), and the other deals with the Family and Medical Leave Act (FMLA).
The Fair Labor Standards Act
Quoting verbatim, here are a few of the questions and answers from the WHD’s guidance on the FLSA:
How many hours is an employer obligated to pay an hourly-paid employee who works a partial week because the employer’s business closed?
The FLSA generally applies to hours actually worked. It does not require employers who are unable to provide work to non-exempt employees to pay them for hours the employees would have otherwise worked.
If an employer directs salaried, exempt employees to take vacation (or leave bank deductions) or leave without pay during office closures due to influenza, pandemic, or other public health emergency, does this impact the employee’s exempt status?
Exempt, salaried employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions. The FLSA does not require employer-provided vacation time. Where an employer offers a bona fide benefits plan or vacation time to its employees, there is no prohibition on an employer requiring that such accrued leave or vacation time be taken on a specific day(s). Further, this will not affect the employee’s salary basis of payment so long as the employee still receives in payment an amount equal to the employee’s guaranteed salary. However, an employee will not be considered paid “on a salary basis” if deductions from the predetermined compensation are made for absences occasioned by the office closure during a week in which the employee performs any work. Exempt salaried employees are not required to be paid their salary in weeks in which they perform no work. Therefore, a private employer may direct exempt staff to take vacation or debit their leave bank account in the case of an office closure, whether for a full or partial day, provided the employees receive in payment an amount equal to their guaranteed salary. In the same scenario, an exempt employee who has no accrued benefits in the leave bank account, or has limited accrued leave and the reduction would result in a negative balance in the leave bank account, still must receive the employee’s guaranteed salary for any absence(s) occasioned by the office closure in order to remain exempt. For more information, see WHD Opinion Letter FLSA2005-41.
What are an employer’s obligations to an employee who is under government-imposed quarantine?
WHD encourages employers to be accommodating and flexible with workers impacted by government-imposed quarantines. Employers may offer alternative work arrangements, such as teleworking, and additional paid time off to such employees.
How many hours per day or per week can an employee work?
The FLSA does not limit the number of hours per day or per week that employees aged 16 years and older can be required to work.
The Family and Medical Leave Act
Quoting verbatim, here are a few of the questions and answers from the WHD’s guidance on the FMLA.
Which employees are eligible to take FMLA leave?
Employees are eligible to take FMLA leave if they work for a covered employer and:
- have worked for their employer for at least 12 months;
- have at least 1,250 hours of service over the previous 12 months; and
- work at a location where at least 50 employees are employed by the employer within 75 miles.
Special hours of service requirements apply to airline flight crew employees and to breaks in service to fulfill National Guard or Reserve military service obligations pursuant to the Uniformed Services Employment and Reemployment Rights Act (USERRA). (See the U.S. Department of Labor Wage and Hour Division or call 1-866-487-9243 for additional information on FMLA.)
Must an employer grant leave to an employee who is sick or who is caring for a family member that is sick?
An employee who is sick or whose family members are sick may be entitled to leave under the FMLA under certain circumstances. The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons. This may include the flu where complications arise that create a “serious health condition” as defined by the FMLA. Employees on FMLA leave are entitled to the continuation of group health insurance coverage under the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period.
Workers who are ill with pandemic influenza or have a family member with influenza are urged to stay home to minimize the spread of the pandemic. Employers are encouraged to support these and other community mitigation strategies and should consider flexible leave policies for their employees.
Can an employee stay home under FMLA leave to avoid getting pandemic influenza?
The FMLA protects eligible employees who are incapacitated by a serious health condition, as may be the case with the flu where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition. Leave taken by an employee for the purpose of avoiding exposure to the flu would not be protected under the FMLA. Employers should encourage employees who are ill with pandemic influenza or are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances.
What legal responsibility do employers have to allow parents or care givers time off from work to care for the sick or children who have been dismissed from school?
Covered employers must abide by the FMLA as well as any applicable state FMLA laws. An employee who is sick, or whose family members are sick, may be entitled to leave under the FMLA. The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons which may include the flu where complications arise that create a “serious health condition” as defined by the FMLA.
There is currently no federal law covering non-government employees who take off from work to care for healthy children, and employers are not required by federal law to provide leave to employees caring for dependents who have been dismissed from school or child care. However, given the potential for significant illness under some pandemic influenza scenarios, employers should review their leave policies to consider providing increased flexibility to their employees and their families. Remember that federal law mandates that any flexible leave policies must be administered in a manner that does not discriminate against employees because of race, color, sex, national origin, religion, age (40 and over), disability, or veteran status.
There are many difficult decisions ahead and employers need not go it alone. The labor and employment lawyers at Bressler stand ready to help you navigate this incredible challenge on a 24/7 basis. If you have any questions, please call or email Jed Marcus, co-chair of the labor and employment practice group, or Emily Bordens in our New Jersey and New York offices, or Carole Miller, co-chair of the labor and employment practice group, Steve Brown or Matthew Penfield, in our Alabama office.