The U.S. Department of Labor on July 20 published additional guidance for employees and employers on how the protections and requirements of various workplace laws impact them as businesses reopen during the ongoing coronavirus pandemic.
In a news release from the department's Wage and Hour Division Administrator Cheryl Stanton said: “The U.S. Department of Labor understands how critically American workers and employers need this information as they return to work . . we are providing ongoing guidance to help them better understand their rights and responsibilities to protect workers.”
The new guidance is around the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA).
The FFCRA, passed in March, expands workers' rights at companies with fewer than 500 employees and defines 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 FLSA and how to factor in any time off they may have been eligible for under regular FMLA.
The DOL noted that employers may not treat employees differently if they took time off for a possible COVID-19 exposure, but an employer concerned that an employee is returning from leave too soon may require a negative test result if the employee has been exposed to someone infected with coronavirus.
The guidance also addressed bringing employees back from furlough. An employer may not refuse to bring an employee back just because the employee may immediately need to take FFCRA leave to care for their children. The FFCRA prohibits discriminating or retaliating against employees because of leave usage.
The DOL also said employers only need to pay employees for actual time spent working where the employer allows time during the workday to tend to childcare or other non-work activities. The DOL provided an example: an employee begins work at 7:00 a.m., takes advantage of flexible work times to provide at-home instruction to children for a few hours, then resumes work in the evening before ending the day at 9:00 p.m. The employee would not be paid for 14 hours but would be paid for the actual hours spent working during that 14-hour period.