New DOL Virus Guidance Tackles Remote Work

By Jon Steingart
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Law360 (July 20, 2020, 9:29 PM EDT) -- The U.S. Department of Labor on Monday published new COVID-19 guidance that says employers can enact policies keeping people who may have been exposed to the novel coronavirus out of the workplace, but warned that workers can't be barred for taking virus-related leave.

The new guidance updates earlier items the agency published about how to handle time off and other flexibilities available under the Families First Coronavirus Response Act, a law Congress passed in March that expands workers' rights to paid and unpaid leave relating to the COVID-19 pandemic. The DOL also updated guidance for determining when an employee working remotely must be paid under the Fair Labor Standards Act and how to factor in time off they may have been eligible for under the existing Family and Medical Leave Act.

"With so many workers and employers committed to the greatest comeback the American workforce has ever seen, we are providing ongoing guidance to help them better understand their rights and responsibilities to protect workers and help ensure a level playing field for employers as our economy recovers," Cheryl Stanton, administrator of the DOL Wage and Hour Division, said in statement announcing the updates. The Wage and Hour Division administers all three statutes.

The DOL stressed that employers may not treat employees differently because of time off they took for a possible COVID-19 exposure, but they may enforce broadly applicable workplace policies. That means an employer that is concerned an employee is returning from leave too soon may use a policy that says anyone who has interacted with someone who contracted the novel coronavirus may not return to work until they test negative, framing the policy in a way that applies irrespective of whether employees took leave, the DOL said.

The guidance also addressed bringing employees back from furlough. An employer may not choose to bring a particular employee back because they will immediately need to take FFCRA leave to care for their children, the DOL said. The FFCRA prohibits discriminating or retaliating against employees because of leave usage.

In addition, time on furlough isn't time on leave, the DOL said. So an employee who used four weeks of leave before being furloughed for several more will return to work having depleted only four weeks of their leave allotment, the DOL said. On the other hand, employees who return from furlough should be considered in the position they were in when they were sent away, the DOL said. That means employees who return from furlough don't start from scratch when it comes to determining whether they've met certain requirements to be eligible for time off.

With respect to employees who used to work on-site and now work from home, the DOL reiterated that there are only a few FFCRA changes to the ordinary FLSA pay rules requiring employers to document and pay work time. The DOL said employers that provide flexibility for employees to take time during the workday to tend to child care or other nonwork tasks only need to pay them for the time they actually spend working, reaffirming a stance it adopted when it published FFCRA regulations in April. Ordinarily, the FLSA continuous workday principle provides that employees don't have to track time on and off task throughout the day because they are simply paid for all time from start to finish, except for meal periods.

The DOL provided an example of an employee with a flexible arrangement who begins work at 7:00 a.m., takes advantage of flexible work times to provide at-home instruction to kids for a few hours during the morning and afternoon, and then resumes work later in the evening before wrapping for the day at 9:00 p.m.

"Of course, you must compensate your employee for all hours actually worked — 7.5 hours — that day, but not all 14 hours between your employee's first principal activity at 7 a.m. and last at 9 p.m.," the DOL said.

Also nodding to widespread social distancing, the DOL added flexibility for employees who ask for FMLA leave for medical appointments. Through the end of 2020, it will consider telemedicine appointments the same as in-person office visits, it said.

A representative for the Labor Department didn't immediately respond to a request for comment Monday.

--Editing by Stephen Berg.

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