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WCI, Inc
March 12, 2020

OSHA and WHD release COVID-19 guidance

The Labor Department’s OSHA and its Wage and Hour Division have both published guidance on dealing with coronavirus in the workplace. OSHA has released a comprehensive 35-page guide for employer planning purposes, while the WHD division has released frequently asked questions and answers about COVID-19 and its intersection with the FLSA and FMLA.

OSHA COVID-19 guidance. Late March 9, OSHA released Guidance on Preparing Workplaces for COVID-19, developed in collaboration with the Department of Health & Human Services to help companies respond in the event of coronavirus in the workplace. The guidance contains information on safe work practices and appropriate personal protective equipment based on the risk level of exposure.

OSHA said it developed the COVID-19 planning guidance "based on traditional infection prevention and industrial hygiene practices." The guidance focuses on the need for employers to implement engineering, administrative, and work practice controls and personal protective equipment, as well as the considerations for doing so.

Planning purposes. The agency said that the guidance is intended for planning purposes, and that employers and workers should use it to help identify risk levels in workplace settings, and to determine any appropriate control measures to implement. OSHA also noted that additional guidance may be needed as COVID-19 outbreak conditions change, including as new information about the virus, its transmission, and impacts becomes available.

OSHA webpage. In addition to the guidance, OSHA recently launched a COVID-19 webpage, which provides infection prevention information specifically for workers and employers. The agency said it is actively reviewing and responding to any complaints regarding workplace protection from novel coronavirus, as well as conducting outreach activities.

WHD FAQs. For its part, the WHD has provided FAQs on common issues that employers and employees face when responding to influenza, pandemics, or other public health emergencies, and their effects on wages and hours worked under the FLSA and the FMLA.

FLSA questions. The FLSA FAQs raise several important questions, including several discussed below, as well as issues about volunteers and telework, among others.

Partial week worked due to office closure. How many hours must an employer pay an hourly paid employee who works a partial week because the employer’s business closed?Here the WHD noted that the FLSA generally applies to hours actually worked; it does not require employers that are unable to provide work to non-exempt employees to pay them for hours they otherwise would have worked.

Mandated leave due to office closure. Where an employer directs salaried, exempt employees to take vacation, leave bank deduction, or leave without pay during office closure, does this impact the employee’s exempt status?The WHD first noted that exempt salaried employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions. Also, the FLSA does not require employer-provided vacation time.

Further, where an employer offers a bona fide benefits plan or vacation time, there is no prohibition on an employer requiring that the accrued leave or vacation time be taken on a specific day(s). This will not affect the employee’s salary basis of payment so long as the employee still receives in payment an amount equal to the employee’s guaranteed salary.

But an employee will not be considered paid "on a salary basis" where deductions from the predetermined compensation are made for absences occasioned by office closure during a week in which the employee performs any work. Exempt salaried employees are not required to be paid their salary in weeks in which they perform no work, however.

What if they have no leave left? Accordingly, a private employer may direct exempt staff to take vacation or debit their leave bank account in the case of an office closure, whether for a full or partial day, provided the employees receive in payment an amount equal to their guaranteed salary. In the same scenario, an exempt employee who has no accrued benefits in the leave bank account, or has limited accrued leave and the reduction would result in a negative balance in the leave bank account, still must receive the employee’s guaranteed salary for any absence(s) occasioned by office closure in order to remain exempt (Here, the WHD cited its 2005 Opinion Letter FLSA2005-41).

Government-imposed quarantine. What are an employer’s obligations to an employee who is under government-imposed quarantine? In response to this scenario, the WHD encouraged employers to "be accommodating and flexible with workers impacted by government-imposed quarantines," and suggested offering "alternative work arrangements, such as teleworking, and additional paid time off to such employees."

Longer workdays. How many hours per day or per week can an employee work? Here, the WHD division noted that that FLSA does not limit the number of hours per day or per week that employees aged 16 years and older can be required to work.

Duties outside of job description. Can an employee be required to perform work outside of the employee's job description? The WHD answered this question in the affirmative, noting that the FLSA does not limit the types of work employees age 18 and older may be required to perform. There are, however, restrictions on what work employees under the age of 18 are permitted to do. This is true no matter whether the work that the employer asks an employee to perform is listed in the employee's job description.

The WHD also suggested that as part of an employer’s pre-influenza, pandemic, or other public health emergency planning, it may want to consult its HR specialists if it expects to assign employees work outside of their job description. Employers likely will want to consult bargaining unit representatives if they have a union contract.

FMLA FAQs. The WHD also provided a series of FAQs pertaining to COVID-19 and how it may intersect with the FMLA, including those addressed below.

Sick or caring for sick family member. Must an employer grant leave to an employee who is sick or caring for a family member who is sick? Here the WHD division notes that an employee who is sick or whose family members are sick may be entitled to FMLA leave under certain circumstances. Eligible employees of covered employers are permitted to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons, which may include the flu where complications arise that create a "serious health condition" as defined by the FMLA. Employees on FMLA leave also are entitled to the continuation of group health insurance coverage under the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period.

The WHD urged workers who are ill with pandemic influenza or have a family member with influenza to stay home to minimize the spread of the pandemic, and also encouraged employers to support these and other community mitigation strategies, specifically by considering flexible leave policies.

Coronavirus avoidance. Can an employee stay home under FMLA leave to avoid getting pandemic influenza? The FMLA protects eligible employees who are incapacitated by a serious health condition, which could be the case with the flu where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition, the WHD said. However, "leave taken by an employee to avoid exposure to the flu would not be protected under the FMLA", the agency stated, but it reiterated that employers "should encourage employees who are ill with pandemic influenza or are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances."

Children dismissed from school. What legal responsibility do employers have to allow parents or caregivers time off to care for the sick or children who have been dismissed from school? Here the WHD noted that covered employers must comply with the FMLA as well as any applicable state FMLA laws. But currently, there is no federal law covering non-government employees who take off from work to care for healthy children, and employers are not required under federal law to provide leave to employees caring for dependents who have been dismissed from school or childcare.

However, the WHD suggested that given the potential for significant illness under some pandemic influenza scenarios, "employers should review their leave policies to consider providing increased flexibility to their employees and their families." The federal agency also stressed that under federal law, "flexible leave policies must be administered in a manner that does not discriminate against employees because of race, color, sex, national origin, religion, age (40 and over), disability, or veteran status."

Paid sick leave. Is an employer required by law to provide paid sick leave to employees who are out of work because they have pandemic influenza, have been exposed to a family member with influenza, or are caring for a family member with influenza? Here, the WHD explained that under federal law, employers are generally not required to provide paid leave to employees who are absent from work because they are sick with pandemic flu, have been exposed to someone with the flu, or are caring for someone with the flu. However, under Executive Order 13706, some federal contractors may be required to provide sick leave to employees under certain circumstances, such as if the employee or a family member is sick with the flu or seeking care related to the flu.

State laws may differ. Notably, certain state or local laws may have different requirements, which employers should independently consider when determining their obligation to provide paid sick leave.

The WHD explained that if the leave qualifies as FMLA-protected, the statute allows the employee to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances, and it stressed that employers "should encourage employees that are ill with pandemic influenza to stay home and should consider flexible leave policies for their employees."

Other guidance. The DOL also noted that the Office of Workers’ Compensation Programs has published guidance for federal employees, outlining Federal Employees’ Compensation Act coverage as it relates to the novel coronavirus.

Further information about coronavirus is available at the Centers for Disease Control and Prevention.

Source: Written by Pamela Wolf, J.D.

From WCI's HR AnswersNow ©2020 CCH Incorporated and its affiliates. All rights reserved.

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