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05.03.2021 Newsletters Doerner

The Employer’s Legal Resource: New DOL Guidance for Employers about COVID-19

In late April, the DOL published new guidance on employer’s COVID-19 related obligations—most importantly, FAQs relating to the Fair Labor Standards Act (FLSA) and when employees need to be compensated for their time. Though these resources are part of a larger initiative aimed at essential workers, they apply equally to all employees. The biggest takeaways from the FAQs concern whether an employee needs to be paid for time spent doing various health screens (including temperature checks and self-screening for symptoms), COVID-19 testing, teleworking, and hazard pay or incentive payments.

COVID-19 Health Screens

An employer who requires temperature checks of employees once they reach the jobsite or during the workday must pay employees for such time. An employer who requires employees to check their own temperature before entering the job site must still pay employees for such time as long as it is necessary for the work they do. (Spoiler alert: if the temperature check is not necessary for the employee to safely and effectively do their work, then requiring a temperature check at all would likely run afoul of the Americans with Disabilities Act.) The same is true when the employer requires employees to complete a self-health screening during the workday.

COVID-19 Testing

Employers who require employees to be tested for COVID-19 during the workday must pay for the time spent undergoing that testing, just as they would for all other time employees spend waiting for and receiving medical attention at the direction of their employer or on the employer’s premises during working hours.

Employers who require employees to be tested for COVID-19 during their time off before they are permitted to come to work must also pay employees for the time spent waiting for and undergoing the testing as long as the test is integral and essential for the work they do. Just as with temperature checks and self-health screenings, if you (the employer) is the one requiring that employees be tested for COVID-19, you should pay your nonexempt employees for this time.

Teleworking

Of course, employers must pay employees for all hours worked—regardless of whether the employee is teleworking or in the physical workplace. If an employer has closed its physical office and requires employees to work from home, but certain employees are unable to perform their jobs from home for whatever reason, those employees need not be paid during the closure (though they may be eligible for unemployment benefits).

Employers can encourage or require employees to telework as part of an infection-control or prevention strategy. Telework may also be a reasonable accommodation for a qualified person with a disability. But employers should not single out employees either to telework or to continue reporting to the workplace on any basis prohibited by other Equal Employment Opportunity laws.

If an employee works from home, the employer might be required to cover any additional expenses the employee might incur (such as internet access, computer, additional phone lines, and increased use of electricity). An employer cannot require the employee to pay for items that are the employer’s business expense if doing so reduces the employee’s earnings below the required federal minimum wage.

Employers are required to keep accurate records of each employee’s hours worked, as well records of work-related injuries and illnesses, for all teleworking employees just as they would be for those employees in the physical workplace.

Incentive Payments

Employers are not required to pay hazard pay during the pandemic, but those who choose to do so must generally include such amounts in the computation of a nonexempt employee’s regular rate for purposes of overtime compensation. Employers who provide incentive payments to employees for getting the COVID-19 vaccine, however, may exclude such “special occasion” payments from nonexempt employees’ regular rate when calculating overtime.

Family and Medical Leave Act (FMLA)

In addition to the FLSA issues about when an employee needs to be paid, the DOL also published FAQs about COVID-19 and the FMLA, and when an employee might be eligible for (job-protected) FMLA leave for COVID-related reasons. Of particular interest to employers, the DOL stated that an employee cannot take FMLA leave when they stay home from work because they want to avoid getting COVID-19 (but are not actually sick).

Otherwise, generally speaking, the FMLA may be available for eligible employees who are out of work because they or immediate family members have serious COVID-related illnesses involving an overnight stay in a hospital or a period of incapacity of at least 3 days and follow-up medical treatment afterwards. (Another important takeaway from the guidance is that telemedicine appointments are treated the same as in-person doctor visits for purposes of determining whether a person has a “serious health condition” under the FMLA.) But remember that only certain employees are eligible under the FMLA (they have worked for their employer for at least 12 months, they have worked at least 1,250 hours for that employer over the 1 year period before their leave begins, and their employer employs at least 50 employees within 75 miles of that employee’s worksite). And FMLA leave is at all times unpaid.

Employers still want to be sure to reach out for legal advice when specific situations arise, but the new DOL guidance gives a solid 30,000 foot overview to get started.

By Rebecca D. Bullard, rbullard@dsda.com

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