On April 26, 2021, the Department of Labor (DOL) issued new guidelines on the Fair Labor Standards Act (FLSA) and the ongoing COVID-19 pandemic. The guidelines are part of DOL’s Essential Workers, Essential Protections initiative, in which DOL has published a number of resources to educate essential workers and their employers about the rights under the FLSA and the Family and Medical Leave Act (FMLA).
The new guidelines update a Q&A page originally published by DOL in July 2020. It acknowledges some common wage and hourly issues employers face during the pandemic and updates the guidance in light of increased vaccination rates and a hopeful return to physical work. While this guide is non-binding, it is a helpful guide to how DOL interprets the FLSA under COVID-19 conditions.
At the same time, DOL announced several training courses for employees and employers and updated its FMLA page with questions and answers.
Issues covered in the Q&A document include instructions on teleworking, employee quarantine, COVID-19 testing, and more. Here are some highlights:
- Employers are required to pay their employees only for the hours they work, be it at home or in the office. When an employee takes time off in the middle of the workday to take care of personal or family commitments, e.g. If, for example, he is looking after children while the school is closed, he does not have to receive any compensation for this time.
- Employers may have to pay their employees for the time they spent on mandatory temperature checks, COVID-19 tests, and filling out health screening forms. This may mean that employees have to be paid to receive a COVID-19 test on their day off when they have to return to work.
- For employees in the healthcare sector, the time that is spent on putting on and taking off COVID-19 protective equipment (“putting on and taking off”) can be compensated. While the guidelines are specifically aimed at healthcare workers only, other workers who need to use protective equipment to do their job properly may be required to be paid.
- Incentive payments for employees who receive COVID-19 vaccinations can be classified as gifts that can be excluded from an employee’s regular remuneration for overtime purposes.
- Employers are encouraged to accept employees who are quarantined due to exposure to COVID-19. Although the mandatory sick leave under the Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020, employers will still be eligible for tax credits if they voluntarily continue to offer this paid sick leave.
- Employers may be asked to compensate their employees for teleworking related expenses, such as internet access or computers, if those business expenses would lower an employee’s salary below the minimum wage.
- Employers with a shortage of workers may not be able to find “volunteers” to do the work. In general, private, for-profit companies must pay their employees at least the minimum wage and cannot accept voluntary service. Non-profit employers and public institutions can only accept volunteers under certain circumstances.
State and local laws can impose additional wage payment obligations on employers. As always, employers should work with legal counsel when they have questions about the proper payment of workers in their company.
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