Coronavirus & the FLSA: Know the rules on pay, leave.

PositionNuts & Bolts

In addition to health and disability issues (see page 1), the coronavirus outbreak has triggered many related questions about wage-and-hour issues. Last month, the U.S. Department of Labor issued guidance for employers who are facing some of these issues in this new pandemic environment. Here's a summary of some key questions and answers:

Can we require telework?

Yes, the DOL confirms that employers can either encourage or even require telework as an infection-control or prevention strategy. The DOL also notes that telework can be used as a reasonable accommodation under the ADA.

However, a different federal law makes note that employers should be careful not to make telework decisions based on protected characteristics, such as gender, race, age or national origin.

Must you pay workers the same rate if they work from home?

If telework is being provided as a reasonable accommodation for a disability (or if it's required by a union or employment contract) then you must pay the same hourly rate or salary.

If this is not the case, the FLSA says employers generally have to pay hourly employees only for the time they actually work, whether at home or at the employer's office.

Thus, if your business is closed temporarily due to COVID-19, you're not required to pay nonexempt employees for time they do not work, even if they were scheduled during those hours.

If your hourly employees are working from home, make sure to continue to track their hours worked. The DOL says employers "would still be required to maintain an accurate record of hours worked for all employees, including those participating in telework or other flexible work arrangements." Plus, employers must still pay overtime to teleworkers who work beyond 40 hours in a workweek.

Employers are encouraged to work with their employees to establish specific hours of work for employees who telework and a mechanism for recording each teleworking employee's hours of work.

Also, note that salaried exempt employees generally must receive their full salary in any week in which they perform any work (subject to certain very limited exceptions) whether they perform the work at home or the office.

Office closure: Can we require employees to use leave?

Employers may require exempt staff to take vacation or paid time off (PTO) in the case of an office closure due to the coronavirus (whether for a full- or partial-day absence) as long as the exempt employee receives his or her full guaranteed weekly...

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