Given the confusion felt by many employers regarding specific federal employment laws during the COVID era, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced additional guidance to provide information to workers and employers about how the requirements and protections of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA) impact the workplace as America continues to reopen. The new guidance provides plain-language questions and answers addressing critical issues under all three laws.
The purpose of the Guide is to provide ongoing guidance to help employers better understand their rights and responsibilities to protect workers and help ensure a level playing field for employers as the economy recovers. For example, the FLSA Guide answers questions such as whether a business can rely on “volunteers” to help out where there is a shortage of workers. The Guide reiterates the rule that covered, nonexempt workers working for private, for-profit employers have to be paid at least the minimum wage and cannot volunteer their services.
At Employers Council, we continue to field calls related to the interaction between the FFCRA and the FMLA. In particular, the Guide responds to a frequently asked question: “Can an employee stay home under FMLA leave to avoid getting COVID-19?” This question is particularly pertinent since while testing is more available at present, wait times for the results can be as long as ten days or more. According to the Guide, “The FMLA protects eligible employees who are incapacitated by a serious health condition, as may be the case with COVID-19 where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition. Leave taken by an employee for the purpose of avoiding exposure to COVID-19 would not be protected under the FMLA. Employers should encourage employees who are ill with COVID-19 or are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances.” We are here to help; please contact Employers Council with questions.