Department of Labor Addresses COVID-19 Impact on FLSA and FMLA Regulations

As companies have rushed to adjust their operating model during the COVID-19 impact, questions have surfaced that have required the Department of Labor (DOL) to issue clarifications regarding the application of the Federal Labor Standards Act(FSLA)  and the Family Medical Leave Act (FMLA). Key points are:

1. Work performed remotely, including overtime work, should be compensated at the same rate as work performed at the worksite. Employers must compensate employees for all reported and unreported hours of telework – including overtime work and hours of telework that they did not authorize – if they knew or had reason to believe the work was actually performed.
2. During a COVID-19 public health emergency, exempt employees may temporarily perform nonexempt duties without losing exempt status, provided that the FLSA minimum salary requirement is satisfied.
3. Employers may not discriminate against an employee based on the employee’s actual or anticipated request for leave under the FMLA or Families First Corona Virus Response Act (FFCRA). Taking leave under the FFCRA does not affect an employee’s exempt status or eligibility for any exemption from the FLSA’s minimum wage and overtime requirements.
4. Until December 31, 2020, telemedicine visits count as in-person visits and electronic signatures count as signatures for purposes of establishing a “serious health condition” under the FMLA. The DOL states that 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.
5. Employers can require an employee who is returning from leave to get tested for COVID-19 if the employers’ requirement for testing applies equally to any type of leave, not just COVID-19 related leaves.
6. An exempt employee whose salary has been reduced because of the pandemic does not lose their exempt status if the salary reduction
   1. is not an attempt to evade the FLSA salary basis requirements and is actually because of COVID-19 or an economic slowdown
   1. has been predetermined (rather than after the fact) based on the employer’s needs 
   1. the reduction does not cause the salary to fall below the minimum salary basis for exempt employees
7. Although the FLSA does not require hazard pay for employees working during the COVID-19 pandemic, employers may be subject to hazard pay obligations under relevant state or local laws or contractual arrangements.
8. Time an employee is on furlough is not considered time on leave. Furloughed employees would be entitled to any unused family or medical leave benefits for qualifying reasons after coming back to work. Employees who have exhausted their 80 hours of paid sick leave under the FFCRA before they were furloughed cannot take additional EPSLA leave after returning to work.
9. While the DOL ordinarily requires employers to compensate non-exempt employees for all time between the performance of the first and last principal activities of a workday, it has modified its guidance. During the pandemic, employers that allow non-exempt employees to telework with flexible hours need not count as hours worked all the time between an employee’s first and last principal activities in a workday.  Employers can only pay for actual hours worked (refer to bullet #1 above).