New Employer Guidance Released on COVID-19 Testing, Leave, and Salary

On July 20^th, 2020, the U.S. Department of Labor (DOL) published additional COVID-19 guidance for employers on how the requirements of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA) affect workplaces as they reopen during the global coronavirus pandemic. The newly updated resources from the DOL’s Wage and Hour Division (WHD) consists of commonly asked questions and answers that address critical issues within all three laws. Some topics addressed include:

• Hazard pay in relation to the FLSA and COVID-19 – The WHD states that the FLSA does not require an employer to pay an employee hazard pay if they are working during the pandemic.
• Salaried employees’ rights under the FFCRA – If a salaried employee takes paid sick leave or expanded family and medical leave under the FFCRA, it will not affect their status or eligibility for other leave under normal FLSA requirements.
• Telemedicine designations under the FMLA – Until December 31^st, 2020, the WHD will consider telemedicine visits to be in-person visits, and will consider electronic signatures to be signatures, for the purpose of establishing a serious health condition under the FMLA. To qualify as an in-person visit, the telemedicine visit must: include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities.
• Employee COVID-19 testing and its relationship to the FMLA – According to the WHD, the FMLA does not prohibit an employer to require COVID-19 testing. This includes the testing of employees who may been out on unrelated FMLA leave when workplace testing became a requirement.

Links to New Guidance

To access the guidance, visit:

• COVID-19 and the Fair Labor Standards Act Questions and Answers;
• COVID-19 and the Family and Medical Leave Act Questions and Answers; and
• Families First Coronavirus Response Act Questions and Answers.

Previously Released Guidance

This guidance is the latest addition to compliance assistance materials that the WHD has published during the COVID-19 pandemic. Previously released materials include a Fact Sheet for Employees, a Fact Sheet for Employers, and a Questions and Answers resource about paid sick and expanded family and medical leave under the FFCRA. The WHD has also produced:

• two required FFCRA guidance posters (one for federal workers and one for all other employees);
• Questions and Answers about posting requirements;
• and Quick Benefits Tips to determine how much paid leave the FFCRA allows workers to take.

Background on the FFCRA

The FFCRA went into effect on April 1^st to help the U.S. combat COVID-19 by reimbursing, through tax credits, American businesses with fewer than 500 employees for the cost of providing employees with paid leave taken for specified reasons related to the coronavirus. The legislation enables employers to provide such paid leave, while at the same time not forcing workers to choose between their paychecks and the public health measures needed to combat the virus. Additional information on common issues employers and employees face when responding to the coronavirus and its effects on wages and hours worked under the FLSA, and job-protected leave under the FMLA can be found on the WHD's COVID-19 website.