On July 20, 2020, the Wage and Hour Division of the US Department of Labor (DOL) published additional COVID-19 guidance in the form of a Q&A addressing Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and Families First Coronavirus Relief Act (FFCRA) issues arising when employers and employees return to work.
A few days before, on July 17, the DOL published streamlined optional-use forms for employer and employee notification and certification obligations under the FMLA and separately asked the public to comment on the FMLA and its regulations in a Request for Information (RFI). The additional guidance and forms should help employers navigate FMLA leave and employee wage and hour issues during COVID-19. And employers now have the opportunity to share their thoughts on the FMLA and its implementing regulations with the DOL. We provide more insight into the DOL’s recent activity below.
The DOL’s New Q&As
In COVID-19 and the FLSA, the DOL provides additional Q&As (#14-#19) covering hours of compensable work for teleworking employees, hazard pay, and concerns regarding employees’ executive, administrative, or professional exempt status. In summary:
- Under the FLSA, an employer must compensate employees for all hours of telework that the employer knows or has reason to believe were worked (even if such work was not authorized), but an employer is not obligated to pay employees for unreported hours of telework the employer neither knew nor should have known about.
- Notwithstanding the “continuous workday rule,” an employer who allows employees to telework flexible hours during the pandemic need not count as hours worked non-productive time between the employees’ first and last principal activities in a workday. For example, an employee who works 7–9 a.m., 11:30 a.m.–3 p.m., and 7–9 p.m. on weekdays must be paid for the hours actually worked that day—7.5 hours—but not the non-work periods of 9-11:30 a.m. and 3-7 p.m.
- Exempt executive, administrative and professional employees may temporarily perform nonexempt duties required by a public health emergency declared by a federal, state or local authority (including the COVID-19 pandemic) without losing their exempt status, as long as they continue to be paid on a salary basis of least $684 per week.
- Hazard pay is not required under the FLSA for employees working during the pandemic (though employers should check applicable obligations under state or local law).
- Exempt employees will not lose their exempt status by taking paid sick leave or expanded family and medical leave.
- Employers can prospectively reduce the amount regularly paid to exempt employees for COVID-19 economic reasons or a related economic slowdown, so long as any such reduction in salary (1) is predetermined rather than an after-the-fact deduction from the employee’s salary based on the employer’s day-to-day or week-to-week needs and (2) is bona fide (i.e. not the employer’s attempt to evade the salary basis requirements and is actually because of COVID-19 or an economic slowdown as opposed to the quantity or quality of work the employee performed).
The DOL provided additional COVID-19 and FMLA guidance with two new Q&As (#12-#13):
- Until December 31, 2020, telemedicine (face-to-face examinations or treatment of patients by health care providers using remote video conference via computers or mobile devices) will be considered to be the equivalent of in-person medical visits and electronic signatures will be deemed adequate for purposes of establishing a serious health condition under the FMLA.
- An employer can require an employee who is returning from FMLA leave unrelated to COVID-19 to follow company policy implemented while the employee was out on leave that requires all employees to take a COVID-19 test before returning to the office (though other laws may impose restrictions on the circumstances when an employer can require COVID-19 testing and what types of tests are permitted).
The DOL also published four additional Q&As on the FFCRA (#94-#97), covering the return of employees to the workplace after self-quarantine, the amount of FFCRA leave available to furloughed employees who have returned to work, and discrimination and retaliation under the FFCRA. Specifically, the new FFCRA Q&As explain that:
- While employers are generally required to restore employees returning from paid sick leave under FFCRA to the same or an equivalent position, due to the pandemic, an employee who was previously advised by a health care provider to self-quarantine because of symptoms of COVID-19 can instead be reinstated to an equivalent position requiring less interaction with co-workers, or can be required to telework. Employees also must comply with job requirements that do not relate to having been out on paid sick leave (such as a company policy requiring any employee known to have interacted with a COVID-infected person to telework or take leave until the employee has personally tested negative for COVID-19 infection).
- Eligible employees are only entitled to a total of 80 hours of paid sick leave and a total of 12 weeks of expanded family and medical leave under the FFCRA. Employees who have taken some of the FFCRA leave for which they are eligible, are furloughed, and then return to work are only entitled to the remaining amount of their eligible leave upon return, assuming they otherwise have qualifying reasons for leave.
- Employers cannot extend a previously-furloughed employee’s furlough because the employee would need to take FFCRA leave to care for a child if called back to work. Employers cannot discriminate or retaliate against employees (or prospective employees) for exercising or attempting to exercise their right to take leave under the FFCRA.
New, Streamlined FMLA Forms
Workers and employers may use the DOL’s new “streamline[d]” optional-use forms to request and coordinate leave under the FMLA. The simplified forms are intended to be easier for employees, employers, leave administrators and healthcare providers to understand and use. For example, the forms include more check-the-box type questions, as well as electronic signature features to reduce contact (a plus during a pandemic). According to the DOL, the new forms will reduce the time users spend providing information, improve communications between employees and administrators, and reduce the likelihood of violations.
The DOL has also published Q&As with the new forms to provide clarity on topics such as whether old DOL forms can still be used (yes) and whether these forms have any applicability to the FFCRA (no). Notably, the forms don’t ask for diagnosis information, meaning they can be used in jurisdictions like California where employers are not permitted to ask for a diagnosis. Though the Certification of Health Care Provider forms do instruct healthcare providers that they may provide a diagnosis, the forms also remind health care providers that state or local laws may not permit a diagnosis disclosure.
The DOL revised the forms after receiving 139 public comments during an August 2019 comment period, but additional revisions to incorporate the public’s feedback are in the process of being finalized. The suite of forms (which also provides instructions for use) includes:
- FMLA Certification of Health Care Provider for Employee’s Serious Health Condition (for use when a leave request is due to the medical condition of the employee);
- FMLA Certification of Health Care Provider for Family Member’s Serious Health Condition (for use when a leave request is due to the medical condition of the employee’s family member);
- FMLA Notice of Eligibility and Rights & Responsibilities (informs the employee of his or her eligibility for FMLA leave or at least one reason why the employee is not eligible, and of the specific expectations and obligations associated with the FMLA leave request and the consequences of failure to meet those obligations); and
- FMLA Designation Notice (informs the employee whether the FMLA leave request is approved, and of the amount of leave that is designated and counted against the employee’s FMLA entitlement; an employer may also use this form to inform the employee that the certification is incomplete or insufficient and additional information is needed).
As mentioned below, these forms are also a topic of requested public comment in the DOL’s new RFI on the FMLA.
The DOL’s RFI Regarding the FMLA
With the goal of “issuing modernized tools to aid in understanding and applying the FMLA,” the DOL’s RFI solicits feedback on any particular challenges or best practices employers or employees may have in the use or administration of FMLA leave-and includes an invitation for employers and employees to provide thoughts on changing FMLA regulations for better effectuation of the FMLA. The DOL has specifically asked employers and employees to comment on the following:
- Challenges employers and employees have experienced in applying the regulatory definition of a serious health condition (including conditions or circumstances employers have encountered that meet the regulatory definition of a “serious health condition,” but which employers do not believe the FMLA covers);
- Specific challenges or impacts employers and employees experience when employees take FMLA leave on an intermittent basis or on a reduced leave schedule (such as any specific challenges employers experience when the timing or need for intermittent leave is unforeseeable);
- Issues employers and employees experience when employees request leave or notify their employers of their need for leave (including whether employees convey sufficient information to notify employers of an FMLA-qualifying reason for leave, or whether employees are aware of the specific information they need to provide);
- Challenges employers and employees have experienced with the medical certification process not addressed by the DOL’s recently published proposed revisions to optional-use forms (discussed above); and
- Whether it would be helpful for the DOL to provide additional guidance regarding interpretations contained in any of the DOL’s seven opinion letters on FMLA topics issued since 2018.
The DOL clarified that the RFI does not address or seek comment on the amended FMLA protections provided under the FFCRA. Employers who wish to contribute must submit written comments on or before September 15, 2020.
As many employers have found, successfully maneuvering through the maze of local, state, federal, and COVID-specific employment laws requires intricate navigation skills. Contact your Baker McKenzie employment attorney to help you set the right course through today’s ever-changing employment law landscape.