On April 26, 2021, the Department of Labor (DOL) issued new guidance related to the Fair Labor Standards Act (FLSA) and the ongoing COVID-19 pandemic. The guidance comes as a part of DOL's Essential Workers, Essential Protections Initiative, in which DOL released a series of resources aimed to inform essential workers and their employers of rights under the FLSA and the Family and Medical Leave Act (FMLA).
The new guidance updates a Questions and Answers page originally issued by DOL in July 2020. It recognizes some common wage and hour issues faced by employers during the pandemic, and updates the guidance in light of increased vaccination rates and a hopeful return to the physical workplace. While this guidance is not binding law, it is a helpful indication of how DOL interprets the FLSA under COVID-19 conditions.
Issues addressed in the Questions and Answers document include guidance on telework, employee quarantine, COVID-19 testing, and more. The following are some highlights:
- Employers are required to pay their employees only for hours worked, whether at home or at the office. If an employee takes time off in the middle of the workday to take care of personal or family obligations, such as caring for children while school is closed, they do not need to be compensated for that time.
- Employers may be required to pay their employees for the time spent getting mandatory temperature checks, COVID-19 tests and filling out health screening forms. This may mean that employees must be paid for getting a COVID-19 test on their day off if it is required to return to work.
- For healthcare workers, time spent putting on and taking off COVID-19 protective safety gear ("donning" and "doffing") is compensable. Although the guidance addresses only healthcare workers explicitly, pay could be required for other employees who are required to use protective gear to adequately perform their jobs.
- Incentive payments offered to employees who receive COVID-19 vaccinations could be classified as gifts, which may be excluded from an employee's regular rate of pay for overtime purposes.
- Employers are encouraged to accommodate employees who are under quarantine because of exposure to COVID-19. Although mandatory sick leave under the Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020, employers are still entitled to tax credits if they voluntarily continue to offer this paid sick leave.
- Employers may be required to compensate their employees for telework-related expenses, such as internet access or a computer, if those business expenses would reduce an employee's pay below minimum wage.
- Employers with a shortage of employees may not be able to seek "volunteers" to work. Generally, private, for-profit businesses must pay employees at least the minimum wage and cannot accept volunteer services. Nonprofit employers and public agencies can accept volunteers only in certain circumstances.
State and local laws may impose additional wage payment obligations on employers. As always, employers should work with legal counsel if they have questions about how to properly pay employees in their business.
We will continue to monitor any further developments as more guidance is issued. Employers with questions about wage and hour matters related to COVID-19 should feel free to contact the authors of this article or any other member of Venable's Labor and Employment Group.