What is in the New Q&A Released by the Department of Labor on COVID-19?

In this episode, we discuss the new Q&A released by the Department of Labor around Coronavirus, particularly with regards to labor-related scenarios.

QUESTION #1: How many hours is an employer obligated to pay an hourly employee who works a partial week because the employer’s business is closed?

Under the Families First Coronavirus Response Act (FFCRA), an employer has obligations to provide leave in a variety of cases. But what if you have to close your business? The Fair Labor Standards Act (FLSA) generally applies to the hours actually worked. It does not require employers who are unable to provide work to nonexempt employees to pay them for hours the employees would have otherwise worked.

QUESTION #2: If an employer directs salaried exempt employers to take a vacation or leave without pay during office closures due to a public health emergency, does this impact the employee’s exempt status?

No. Exempt employees who are salaried generally must receive their full salary in any week that they perform any work, subject to certain very limited exemptions. The FLSA does not require employer-provided vacation time. However, when an employer offers bonafide benefits or vacation time to their employees, there is no prohibition on an employer requiring that vacation time be taken on specific days.

QUESTION #3: What are an employer’s obligations to an employee who is under government-imposed quarantine?

The U.S. Department of Labor’s Wage and Hour Division (WHD) encourages employers to be accommodating and flexible with workers impacted by government-imposed quarantines. They can offer alternative work arrangements such as teleworking, work-from-home, and additional paid time off. However, they are under no obligation to retain them. If the employee is ill or is taking care of someone who is ill, this falls under the FFCRA. If a quarantine order prohibits employees from physically going to work, this falls under the answer to Question #1.

QUESTION #4: How many hours per day or per week can an employee work?

The FLSA does not limit the hours per day or per week that employees aged 16 or older can be required to work. However, employers must pay for overtime.

QUESTION #5: Can an employee be required to perform work outside the employee’s job description?

Yes. The FLSA does not limit the type of work that employees aged 18 or older can be required to perform.

QUESTION #6: May an employer encourage or require employees to telework or work from home as an infection control strategy?

Yes. Telework can also be a reasonable accommodation for high-risk employees (i.e. asthmatic, overweight, etc.). Employers cannot single out employees to telework or continue reporting to the workplace on a basis prohibited by any of the Equal Employment Opportunity (EEO) laws.

QUESTION #7: In the event that an organization bars employees from working from their current place of business and requires them to work from home, will employers have to pay those employees who are unable to work from home?

Under the FLSA, employers generally only have to pay employees for the hours they work, whether at home or at the employer’s office. However, employers must pay at least the minimum wage for at least all hours worked and at least time-and-one-half the regular rate of pay for hours worked in excess of 40 hours a week. Salaried employees must receive their full salary in any week in which they perform work with very limited exemptions.

QUESTION #8: Are businesses and other employers required to cover any additional costs that an employee may incur when they work from home (i.e. internet connection, phone lines, security, electricity, etc.)?

We have to break this down into those who are covered by the FLSA and those who are not. Employers have no obligation to cover expenses incurred by salaried FLSA-exempt workers. For those who are covered by the FLSA, the employer cannot be required to pay for or reimburse the employee for items that fall under business expenses if doing so reduces the employee’s earnings below required minimum wage or overtime.

QUESTION #9: I am a salaried exempt employee from the minimum wage and overtime requirements under Section 13A1 of the FLSA as a bona fide executive, administrative, or professional employee. Can my employer reduce my salary during the COVID-19 pandemic or an economic slowdown? Would I lose my exempt status if my employer does so?

As long as your employer changes your salary going forward, then this is not a problem. It will not result in you losing your exempt status. Any such reduction has to be predetermined rather than an after-the-fact reduction from your salary. Also, the salary change must be what is called “bona fide”, meaning that the change is not an attempt to evade the salary basis requirement and is actually due to the economic slowdown/COVID-19 situation as opposed to the quality or quantity of the work you perform.