US DOL has updated its guidance concerning telework compensation and exemption status under the FLSA (Questions 14-19):
• A teleworking employee must be paid for all hours of telework actually performed. Work performed at home is treated the same as work performed at the worksite for purposes of compensability.
• Where an employee is teleworking with flexible hours, the FLSA does not require compensation for all hours between starting work and finishing work, but the employee must be compensated for all hours actually worked.
• An exempt employee under the FLSA may temporarily perform nonexempt duties that are required as a result of COVID-19 without losing the exemption, as long as the employee continues to be paid on a salary basis of least $684 per week. Note that New York State law requires a higher salary basis for certain exempt employees.
• Hazard pay is not required under the FLSA for employees working during COVID-19.
• Taking paid sick leave or expanded family and medical leave will not affect an employee’s exempt status under the FLSA.
• An employer may prospectively reduce the salary of a salaried exempt employee for economic reasons related to COVID-19.
The full FLSA COVID-19 guidance can be found here: https://www.dol.gov/agencies/whd/flsa/pandemic
US DOL has also updated its guidance concerning FMLA-related telemedicine visits and employer-mandated COVID-19 testing (Questions 12-13):
• Telemedicine visits are counted as in-person visits until December 31, 2020 and can be sufficient to establish a serious health condition under the FMLA.
• The FMLA does not prohibit an employer from requiring an employee returning to work from FMLA leave to take a COVID-19 test before returning to work if the employer requires such testing on all of its employees.
The full FMLA COVID-19 guidance can be found here: https://www.dol.gov/agencies/whd/fmla/pandemic
The Attorneys at Levene Gouldin & Thompson, LLP are available to provide advice and counsel concerning matters related to COVID-19.