By all accounts, the number of employees taking time off due to coronavirus will increase in the coming weeks and months, forcing most employers to make significant staffing decisions as they try to operate a business in the midst of a pandemic. As the number of reported coronavirus cases grows, employers are looking for guidance from the federal government on how to resolve tricky coronavirus-related situations that arise in the workplace without violating federal employment laws.
The U.S. Department of Labor (DOL) has published guidance for employers on how to address common workplace questions prompted by the coronavirus, while still abiding by the Family Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA). These new guidelines will serve employers well as they strive to comply with federal employment laws, address the staffing demands for their business and protect the health and well-being of their employees.
The FMLA guidance states that employers must provide unpaid FMLA leave to eligible employees with coronavirus or eligible employees who care for a family member with coronavirus only when the employee or the infected family member suffers from complications that create a “serious health condition” as defined by the FMLA. Leave taken by an employee for the purpose of avoiding exposure to coronavirus, however, is not protected under the FMLA. Still, the DOL urges all employers to allow employees to stay home if they contract coronavirus or have a family member with coronavirus to minimize the spread of the pandemic, even if they do not qualify for FMLA leave, and recommends adopting a flexible leave policy.
The FLSA guidance states that private employers with a staffing shortage due to coronavirus will violate the FLSA if they request employees to temporarily work for free to offset business losses caused by the pandemic. It further notes that the FLSA does not cap the number of hours an employee over 16 years old can work, meaning that an understaffed business can ask healthy employees to work more hours than usual as long as they are paid minimum wage and overtime for hours worked over 40. Employers may ask employees to work from home as an infection-control strategy, but the employer must pay non-exempt workers the minimum wage (and any overtime pay) for all hours worked. Salaried employees who work from home must receive their full salary in any week in which they perform any work.
As the coronavirus continues its spread across the U.S., many workplaces will face staffing and payroll challenges. Thankfully, the DOL has provided helpful answers on several coronavirus-related topics in the FMLA guidance and FLSA guidance linked above. Employers should consult the full DOL guidelines when confronted with coronavirus questions during this uncertain time. In addition, the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention (CDC) have offered guidance to U.S. businesses and employers on how to plan and respond to the spread of the strain of coronavirus.
Please contact us if you have any questions or need advice on coronavirus-related issues in the workplace.