New guidance for employers regarding wages and benefits was issued by the U.S. Department of Labor (DOL), intended to clarify how it will enforce laws and regulations during the continuing Coronavirus pandemic.
Additional return to work and leave issues under the Family and Medical Leave Act (FMLA) and Families First Coronavirus Response Act (FFCRA) were addressed in additions made to the DOL Wage & Hour Division (WHD) questions-and-answers Web page. The department earlier sought to answer several other wage and benefit issues amid employer concerns about dealing with employees who refused to return to wor
“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,” said WHD Administrator Cheryl Stanton in the July 20 announcement. “With 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.”
Employers also should take note that DOL has updated its FFCRA guidance poster, which they can use to fulfill the notice requirements imposed on employers for informing employees of their rights under the FFCRA. In addition, the department has prepared a Quick Benefits Tips Poster explaining to employees the different kinds and amounts of leave available to them.
“FFCRA will help the U.S. combat and defeat the Coronavirus by reimbursing, through tax credits, American businesses with fewer than 500 employees for the cost of providing employees with paid leave taken for specified reasons related to the Coronavirus,” the division declared. “The legislation enables employers to provide such paid leave, while at the same time ensuring that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus.”
In a development separate from the Labor Department clarifications, the Centers for Disease Control and Prevention (CDC) chose to update its guidance for how the discontinuation of isolation should be applied to employees who don’t work in the healthcare industry who have the COVID-19 illness.
The CDC clarified that people with COVID-19 who have symptoms but have not been hospitalized and were directed to care for themselves at home may choose to discontinue isolation under three conditions:
● At least 10 days have passed since symptom onset.
● At least 24 hours have passed since resolution of fever without the use of fever-reducing medications.
● Other symptoms have improved.
DOL Addresses Leave
In its update, DOL says that in general an employee returning from paid sick leave under the FFCRA has a right to be restored to the same or an equivalent position by their employer.
DOL said that due to the public health emergency and the employee’s potential exposure to an individual with COVID-19, the employer may temporarily place this person in an equivalent position requiring less interaction with co-workers or require that he or she telework from home.
Keep in mind that the employer can’t require that the employee take additional leave until he or she has personally tested negative for COVID-19 infection, regardless of whether they have taken any kind of leave. In addition, employers are not allowed to require the employee to telework or be tested for COVID-19 simply because that person took leave under the FFCRA.
Employees who previously exhausted paid sick leave benefits under the FFCRA and were then subsequently furloughed cannot ask for additional paid sick leave benefits under the FFCRA after the business reopens and they haven’t been reinstated.
Employees are limited to a total of 80 hours of paid sick leave under the FFCRA. If the employee took fewer hours of paid sick leave before they were furloughed, they are entitled to use the remaining hours after the furlough ends, as long as they have a qualifying reason for doing so.
For example, if an employee took four weeks of expanded family and medical leave before being furloughed and continues to need to care for a child because the child care provider is unavailable for COVID-related reasons, they can take up to eight additional weeks because they are entitled to up to 12 weeks of such leave under the FFCRA.
Because the reason the employee needs to take leave may have changed during the furlough, the employer should treat a post-furlough request for expanded family and medical leave as a new leave request and can require the employee to provide appropriate documentation demonstrating the current need, DOL says.
Pay Conditions & Telework
The FLSA does not require employers to offer hazard pay, according to WHD, and exempt and non-exempt status does not need to be modified because of changes in work and pay status forced by the pandemic.
During the public health emergency, “otherwise-exempt employees may temporarily perform nonexempt duties that are required by the emergency without losing the exemption as long as they continue to be paid on a salary basis of least $684 per week,” the division says.
The guidance also confirms that when employees are teleworking, the number of compensable hours worked should be determined in the same manner as they are when employees are on the job at the primary worksite.
WHD holds that employees must be compensated for all hours of telework they actually perform, even if the hours were not authorized or reported, as long as the employer knew or had reason to know the work was performed.
“Importantly, the WHD clarified that employers need not compensate teleworking employees for time taken during the normal workday that the employee uses to complete personal and family obligations, such as caring for their children during school closures,” explain attorneys for the law firm of Patterson Belknap Webb & Tyler.
Although DOL regulations broadly hold that the time between the employee’s performance of the first and last principal activities of a workday is usually compensable, “the department readily recognized that applying this guidance to current teleworking arrangements during a global pandemic would discourage needed flexibility,” the attorneys point out.
As a result, an employer that permits an employee to telework with a flexible-hour arrangement during the COVID-19 health emergency does not need to count as hours worked all of the time between the employee’s first and last principal activities of the day.
However, the attorneys stress that employers would be wise to review state laws in regard to computation of hours, because they may provide enhancement flexibility accruing to the benefit of the employee.
In another clarification, WHD said that until Dec. 31, 2020, it will consider telemedicine visits to be the equivalent of in-person visits, and will consider electronic signatures to be signatures, for purposes of establishing a serious health condition under the FMLA.
To qualify for this consideration, the telemedicine visit must include an examination, evaluation, or treatment by a healthcare provider; must be performed by way of video conference; and must be permitted and accepted by state licensing authorities.
The attorneys also warn employers that they are permitted to require COVID-19 testing for employees before they return to work with the exception of antibody testing, which is not permitted. They add that testing requirements should always be enforced consistently, cannot be retaliatory, and must comply with other federal and state laws.
