Employers should consider this important guidance when preparing for their return to the workplace. Klehr Harrison is continuously studying the DOL’s guidance and is available to assist employers in ensuring compliance and avoiding litigation.
In its most recent guidance, the DOL stated that, generally, an employee returning from paid sick leave under the Families First Coronavirus Response Act (FFCRA) has a right to be restored to the same or an equivalent position. However, due to the public health danger posed by COVID-19, employers concerned about an employee’s potential exposure to COVID-19 may temporarily reinstate the employee into an equivalent position requiring less interaction with coworkers or require telework. One example provided by the DOL of a permissible restriction is that an employer may require an employee that knows they have interacted with a COVID-infected person to telework or take leave until they test negative for infection. The DOL notes, however, that employers may not require employees to telework or be tested for COVID-19 merely because they took leave under the FFCRA.
Furlough and Leave Considerations
Employers may not discriminate or retaliate against employees that exercise or attempt to exercise their right to take leave under the FFCRA. Accordingly, employers that temporarily closed their businesses due to state or local orders may not choose to exclude certain employees from returning from furlough merely because those employees would require FFCRA leave upon return. Further, the DOL has stated that the time an employee has been furloughed does not count towards the entitlement of FFCRA leave. For instance, if an employee took four weeks of leave under the FFCRA prior to the employer suspending operations and furloughing all employees, upon the employer’s resumption of business and return of employees to work, the employee would have an additional eight weeks of leave remaining.
Remote Workers Guidance
The new DOL guidance provides that, under the Fair Standards Labor Act (FLSA), employers must compensate remote employees for all time worked in the employee’s home, the same as if the employee was working at his or her primary worksite. This requirement extends to hours of telework that an employer did not authorize and/or unreported hours of telework that the employer knew or has reason to know was performed. There is no requirement to compensate for unreported hours that the employer had no knowledge of and had no reason to believe would be performed, although that is frequently an issue in factual dispute if the employee makes a claim. The DOL recommends that employers develop reasonable time-reporting procedures to ensure that time is properly recorded and compensated. An appropriate time-reporting program is an important tool for preventing employee wage and hour claims.
Employers need not compensate remote workers for time spent during the normal workday on non-work-related tasks, like caring for children whose schools have closed. The DOL has recognized that many employers have granted their employees remote flexibility to attend to family tasks that have tended to arise with the closure of schools, like remote education. Under normal circumstances, an employee present at his or her workplace is generally compensated for the time spent at the workplace, even if a work task is not being performed. The DOL’s position is that employers are required to only compensate employees for time spent working. For example, if an employee and employer agree that the employee will have a four-hour break between 10 a.m. and 2 p.m. but will work from 8 to 10 a.m. and 2 to 8 p.m. the employee is compensated for eight hours, not 10.
The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.
Co-authors Jonathan Krause, partner and Gregory Sellers, associate are members of the labor and employment practice group at Klehr Harrison.