The Department of Labor (DOL) recently published more guidance for workers and employers on how the protections and requirements of the FLSA, the FMLA, and the Families First Coronavirus Response Act (FFCRA) affect workplaces as they reopen amid the coronavirus pandemic. While much of the guidance reiterates general standards under each of these laws, they offer some clarifying insights on a few issues specific to COVID-19.
FMLA. The DOL has confirmed that until December 31, 2020, telemedicine visits will be considered to be in-person visits, and electronic signatures will be considered signatures for purposes of establishing a serious health condition under the FMLA. To be considered an in-person visit, 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, the FAQ noted.
In addition, the DOL states that the FMLA does not prohibit an employer for requiring an employee who was out on FMLA leave to get a COVID-19 test before he or she comes back to the workplace. The employer’s requirement for testing cannot be related to the employee being out on leave, but if all employees are required to undergo testing to come back to the workplace, those returning from FMLA leave also can be required to get a test. The DOL notes that other laws might impose restrictions on the circumstances of when an employer can require COVID-19 testing.
FFCRA. Two of the new FFCRA FAQs address timing issues in regard to using paid leave and an employee’s furlough status. For instance, if an employee used 80 hours of paid sick leave under the FFCRA before being furloughed, the employee is not eligible for additional paid sick leave under the FFCRA after returning to work. If the employee had used less than 80 hours of sick leave before being furloughed, the employee would be entitled to use the remaining hours after the furlough if having a qualifying reason to do so. Therefore, the DOL makes clear that the period of time that the employee was on furlough does not count against FFCRA/FMLA leave entitlement.
Similarly, another FAQ states that if an employee had used four weeks of expanded FMLA before being furloughed, the employee would be eligible for eight additional weeks of leave after returning to work (since employees are entitled to 12 total weeks of expanded FMLA leave). However, the DOL notes that in both instances, employers can treat the post-furlough leave as a new leave request and ask the employee to provide the appropriate documentation for the reason of the current leave.
The new guidance also provides direction to employers that have employees returning to work after caring for a family member exposed to COVID-19. The DOL notes that while employees returning to work after paid FFCRA leave are entitled to be restored to their same or equivalent position, an employer may be able to bring employees back to work in positions requiring less interaction with co-workers, or require them to telework.
Finally, the DOL’s guidance expressly states that employers may not discriminate or retaliate against employees for the use of FFCRA leave, and may not use the anticipated need for FFCRA leave upon reopening as a negative factor in an employment decision.
FLSA. The guidance clarifies that during the period of a public health emergency declared by a federal, state, or local authority with respect to COVID-19, otherwise exempt classified employees may temporarily perform nonexempt duties that are required by the emergency without losing the exemption. COVID-19 is a rare event affecting the public welfare of the entire nation that an employer could not reasonably anticipate and is consistent with the FLSA’s regulatory criteria for emergencies. Employees who are temporarily required to perform nonexempt duties due to COVID-19 may do so without losing the FLSA exemption, as long as they continue to be paid on a salary basis of least $684 per week.
Compliance assistance materials. The DOL also provided two fact sheets and other resource materials for employers about the FFCRA:
- A Fact Sheet for Employees;
- A Fact Sheet for Employers;
- A Questions and Answers resource:
- A guidance poster for federal workers (that fulfills notice requirements);
- A guidance poster for all other employees (that fulfills notice requirements);
- Questions and Answers about posting requirements; and
- Simple Quick Benefits Tips to determine how much paid leave the FFCRA allows workers to take.
Source: CCH/Wolters Kluwer; DOL.gov