The Department of Labor (DOL) Wage and Hour Division (WHD) has updated its guidance for employers regarding COVID-19 and the Fair Labor Standards Act (FLSA) that was issued in July 2020, incorporating information for employers that need to deal with their continuing pandemic response.
The WHD Web page is set up in a question-and-answer format and advises that hourly non-exempt employees need only to be paid for the hours actually worked, that exempt employees must be paid a weekly salary that is not subject to deductions for the quantity or quality of work performed, and that individuals may not volunteer to work for a private, for-profit employer.
Attorney Fiona W. Ong of the law firm of Shawe Rosenthal reminds employers that DOL’s original guidance specifies the following under federal law (state laws may impose different requirements):
• An employer can require employees to take accrued vacation or paid time off (PTO) during office closures.
• Particularly in light of staffing shortages, employees can be required to perform work outside of their job descriptions. In addition, exempt employees can temporarily be required to perform non-exempt duties without jeopardizing their exempt status.
The WHD originally stated that, unless an employee is subject to a collective bargaining or other employment agreement, or telecommuting is being permitted as a reasonable accommodation under the Americans with Disabilities Act (ADA), an employer may reduce the pay of telecommuting non-exempt employees as long as they receive at least the applicable minimum wage rate. Although this is still true, the WHD has now backed off such affirmative language, presumably to avoid encouraging employers to make such reductions.
• An employer may prospectively reduce the salary of exempt employees due to economic reasons related to COVID-19 or an economic downturn, as long as the employee continues to receive the required minimum weekly salary ($684).
• Employers are not required to cover additional work-from-home costs (e.g. Internet, equipment, etc.) incurred by employees, as long as those costs do not reduce the employee’s hourly rate below the minimum wage. If telecommuting is a reasonable accommodation under the ADA, however, then the employer is responsible for any additional costs.
• Safe workplace standards under the Occupational Safety and Health Act do not apply to home offices. Employers must still record any work-related injuries or illnesses incurred in the home office, however.
• In order to accommodate childcare needs, an employer that allows employees to telework with flexible hours during the COVID-19 emergency does not need to count as hours worked all the time between an employee’s first and last principal activities in a workday. Rather, only those hours actually worked need be paid—but the employee and employer should be very clear as to what the arrangement is.
• Hazard pay is not required under the FLSA.
What Is New
To the 2020 information, WHD has chosen to add the following:
• The time spent performing a temperature check before an employee begins work may be compensable if it is necessary for the employee to perform their job, according to the division. In addition, an employee must be compensated for any time required to undergo a temperature check or health screening during the workday.
• WHD also holds that the time spent obtaining a COVID-19 test, whether it is during the normal workday or during off-duty hours, may be compensable if it is necessary for the employee to perform their job. Incentive payments to get the COVID vaccine are not included in the calculation of a non-exempt employee’s regular rate.
“WHD encourages employers to be flexible with employees who are required to quarantine, by offering telecommuting and paid leave, including the voluntary Families First Coronavirus Response Act (FFCRA) paid sick leave and paid family and medical leave, if applicable. It also reiterates that employees must be paid for time spent teleworking,” Ong points out.
Non-exempt employees may not volunteer services to private, for-profit employers. They may volunteer for public agencies and private not-for-profit employers if very specific criteria are met, and the employee is not volunteering the same services that they also are employed to perform. If paid, hazard pay is included in the calculation of the non-exempt employee’s regular rate.
Direct healthcare employees must be paid for time spent donning and doffing protective and safety gear before and after a shift, since it is necessary to perform direct patient care safely and effectively during the pandemic. “Although this portion of the Q&A only addresses healthcare employees, we note that it may also apply to employees in other industries where such gear is deemed necessary in the context of the pandemic,” Ong explains.
The WHD asserts that employees must be paid for all time spent working while telecommuting, as long as the employer knew or should have known of the work time—even if it wasn’t authorized. The division also reminds employers it is their responsibility to exercise control to prevent unwanted work from being performed, by implementing reasonable time reporting procedures.
In addition, it says that child workers are subject to certain work hours limitations based on age, whether the work is agricultural or non-agricultural, and whether school is in session—which includes schools that are physically closed but engaging in virtual learning.
“The FLSA does not address whether employees may bring their children to work, but if they do and the children are assisting the parent in performing work, the children will be considered employees subject to the protections and requirements of the FLSA,” Ong says.
