COVID-19: Round-up of recent DOL guidance and developments

The effect of furloughs on FFCRA leave

Due to the financial impact of the COVID-19 pandemic, many employers have had to make the difficult decision to furlough members of their workforce.  A furlough is not a layoff or termination of employment; rather, it is a temporary leave of absence in which employees are not scheduled, permitted, or authorized to perform work and do not receive compensation..

The U.S. Department of Labor recently issued guidance that made clear that employees who utilized Families First Coronavirus Relief Act (FFCRA) leave – whether paid sick leave or expanded family and medical leave – prior to a furlough would only be entitled to use whatever leave they have remaining after returning from furlough. Employees are limited to a total number of 80 hours of paid sick leave under the FFCRA. If an employee had taken fewer than 80 hours of paid sick leave before a furlough, the employee would be entitled to use the remaining hours after returning from leave if the employee has a qualifying reason to do so. The same is true for expanded FMLA leave. Under the FFCRA, eligible employees are entitled to up to 12 weeks of expanded family and medical leave. The weeks an employee is furloughed do not count as time on leave under the FFCRA. For example, if an employee used only four weeks of expanded family and medical leave prior to furlough, upon returning she would be eligible for eight additional weeks of leave if she has a qualifying reason to take it.

The DOL further warns against discriminating against certain employees who need or request FFCRA leave. Employers may not, for example, choose not to recall an employee from furlough or continue an employee’s furlough because that employee had attempted to exercise a right to leave under the FFCRA—i.e., he or she has indicated a need for FFCRA leave to care for his or her child.

[UPDATE]  On Monday, August 3, 2020, a New York federal judge struck down four components of the DOL regulations that implemented the emergency paid leave provisions of the FFCRA. It is expected that this court ruling will be appealed. The Court’s decision was not a nationwide injunction. Other states or individuals may file similar lawsuits. The DOL may announce revisions to its regulations, the guidance it has provided, or its intent to appeal the decision. Simply put, the decision creates great uncertainty for employers. Read more here.

The FLSA and telework

The DOL also provided recent guidance on employers’ FLSA obligations when it comes to flexible work arrangements. Given the pandemic, many employers have opted to allow flexible work schedules, including telework, for certain employees. Telework, or work performed away from the primary worksite, including at the employee’s home, is treated the same as work performed at the primary worksite for purposes of compensability. Employers must compensate employees for all hours of telework actually performed away from the primary worksite, including overtime work, in accordance with the FLSA, provided that the employer knew or had reason to believe the work was performed. This is true even of hours of telework that you did not authorize. You also must compensate your employee for unreported hours of telework that you know or have reason to believe had been performed. However, employers are not required to compensate employees for unreported hours of telework that the employer had no reason to believe had been performed, i.e., where the employer neither knew nor should have known about the unreported hours.  In most cases, an employer may satisfy its obligation to compensate teleworking employees by providing reasonable time-reporting procedures and compensating that employee for all reported hours.

Some employers are providing flexibility to employees in their hours of work so they can take time out of the normal workday for personal and family obligations, such as caring for children. If employees begin to work, but take several hours in the middle of the day to care for their children, and then return to work, employers are not required to compensate employees for all of the hours between starting and finishing work. This is a specific exception to the general continuous workday guidance that the DOL has recognized in the midst of the COVID-19 emergency.  The Department stated in the FFCRA rulemaking that 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. For example, assume you and your employee agree to a telework schedule of 7–9am, 11:30am–3pm, and 7–9pm 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 7am and last at 9pm.

The DOL has also weighed in on exempt executive, administration, and professional employees who may be performing some non-exempt duties during this COVID-19 public health emergency. At times, the performance of such non-exempt duties could cause the employee to lose their exemption status and expose an employer to potential FLSA liability. However, the DOL has stated that during the period of a public health emergency declared by a federal, state, or local authority with respect to COVID-19, otherwise-exempt employees may temporarily perform nonexempt duties that are required by the emergency without losing the exemption. DOL regulations permit an employee who otherwise qualifies for a Section 13(a)(1) exemption to perform nonexempt duties during emergencies that “threaten the safety of employees, a cessation of operations or serious damage to the employer’s property” and which are beyond the employer’s control and could not reasonably be anticipated. COVID-19 is a rare event affecting the public welfare of the entire nation that an employer could not reasonably anticipate and is consistent with the FLSA’s regulatory criteria for emergencies. Employees who are temporarily required to perform nonexempt duties due to COVID-19 may do so without losing the FLSA exemption, as long as they continue to be paid on a salary basis of least $684 per week.

The FLSA and salary reductions

Many employers have made the difficult business decision to reduce the salaries of FLSA-exempt employees. The DOL has confirmed that an employer may prospectively reduce the amount regularly paid to a salaried exempt employee for economic reasons related to COVID-19 or a related economic slowdown without losing such employee’s exempt status under the FLSA. The reduction must be made on a go-forward basis, and not applied as an after-the-fact deduction from the employee salary. As a reminder, no deductions can be made based on the quantity or quality of the employee’s work, or for example, based on the employer’s day-to-day or week-to-week needs. A proper salary reduction to an exempt employee’s salary will not cause the employee to lose their exempt status under the FLSA.

The FMLA and telemedicine

The DOL has also recently clarified the effect of telemedicine on considerations of a serious health condition under the FMLA. Due to safety and health concerns related to COVID-19, many healthcare providers are treating patients for a variety of conditions, whether related or unrelated to COVID-19, via telemedicine. Telemedicine involves examination or treatment of a patient by remote video conference. The DOL has confirmed that telemedicine visits count as in-person visits for purposes of the FMLA. Until December 31, 2020, the DOL will consider telemedicine visits to be in-person visits and will consider electronic signatures to be signatures for purposes of establishing a serious health condition under the FMLA. 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. The DOL has permitted this approach because health care facilities and clinicians around the nation are under advisories to prioritize urgent and emergency visits and procedures and to preserve staff personal protective equipment and patient-care supplies.

Possible COVID-19 liability relief for employers considered by Congress

Many employers are already following CDC and OSHA guidance regarding COVID-19 prevention and hygiene techniques and reporting obligations for their workplaces. A Republican bill proposed recently in the Senate would give employers extra protection from coronavirus exposure lawsuits if they make reasonable efforts to comply with applicable government standards and guidance and do not engage in gross negligence or willful misconduct to cause an actual exposure to coronavirus. This comes amid a recent surge of lawsuits against employers, where employees (or families of deceased workers) contend that employers did not have enough protections in place against exposure. The bill is far from becoming law, but we are paying attention to this development, and whether the bill will become law with this particular liability relief provision for businesses intact.

As always, do not hesitate to contact the labor and employment attorneys and/or the COVID-19 Response Team at McAfee & Taft for more information and to discuss your business decisions.