This week, the U.S. Department of Labor (“DOL”) Wage and Hour Division (“WHD”) issued new Q&A guidance on Wage and Hour Rules and the Family and Medical Leave Act (“FMLA”), as well as an online resource for employees relating to eligibility for Families First Coronavirus Response Act (“FFCRA”).
Wage and Hour Guidance
On July 20, 2020, WHD released additional guidance
relating to questions about FMLA coverage and Wage and Hour Rules during the pandemic. The guidance includes:
Telework and Hours Worked
Under typical employment relationships, WHD rules require an employer to count all hours worked by an employee from the first principal work activity of the day to the last principal work activity of the day as general compensable time. WHD clarified that in furtherance of encouraging flexibility during the pandemic, and through the rulemaking process for the FFCRA, in telework arrangements, an employer that allows employees who take time off work activities during the workday to attend to personal or family obligations does not need to count those hours as compensable time. The employer must compensate an employee for all hours actually worked.
Salaried Exempt Employees
To qualify as exempt under the executive, administrative, or professional overtime exemptions, employees must engage in specific duties to demonstrate proper exempt status. WHD clarifies that during the pandemic, employees may temporarily perform nonexempt duties that are required because of the emergency “that threaten the safety of employees, a cessation of operations, or serious damage to the employer’s property.” The need for the temporary nonexempt duties must be beyond the employer’s control and could not reasonably be anticipated. The employee must continue to be paid on a salary basis of at least $684 a week.
Exempt employees will not lose exempt status for taking paid sick leave or emergency expanded FMLA, even when such leave is used intermittently.
Salary reductions due to the economic impacts to an employer of COVID-19 are allowable, but must be done for bona fide reasons that cannot be done in an attempt to evade the salary basis requirements and must actually be caused by COVID-19 or an economic slowdown as opposed to the quantity or quality of work performed by the employee. Any reductions must be done on a prospective basis. The reduction cannot be retrospective. To maintain exempt status, even with a salary reduction, an employee must earn a minimum of $684 a week.
The current federal minimum wage is $7.25 per hour (Oregon state minimum wage is $12.00 per hour, and $13.25 per hour in the Portland Metro area). Hazard pay may be determined by private agreement, but is not required under the Fair Labor Standards Act (FLSA.) Employers must pay for every hour worked and overtime of one and one-half times the employee’s regular rate of pay for each hour worked over 40 hours in a week.
The DOL also launched an online resource
to assist employees in determining eligibility for paid leave under FFCRA. The webpage provides easy to follow questions paralleling the covered categories of eligibility. As a reminder, an employer must provide employees paid sick time when an employee is unable to work in the following circumstances:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to self-quarantine related to COVID-19;
- The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- The employee is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
- The employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
- The employee is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
As always, our team at Bullard Law is here to help if you have any questions.
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