HSB’s Employment Team continues to monitor the latest developments with COVID-19 and its impact on the workplace. The current version of the COVID-19 Relief Package being considered in Congress contains mandatory paid sick leave and expanded FMLA. Since the proposed bill changes by the day, we will not summarize it here but continue to update this blog when it passes.
The U.S. Department of Labor has now issued guidance/FAQs on COVID-19 and the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). The guidance can be found here for FLSA Q&A and FMLA Q&A.
A couple of important takeaways:
- Think twice before using unpaid “volunteers” to fill staff shortages – the FLSA generally mandates that workers be paid at least minimum wage for all work performed;
- Non-exempt employees do not have to be paid if they are not working;
- Exempt employees generally have to be paid full salary if they work any part of a week;
- Employers may encourage or require telework, and must consider it as a reasonable accommodation;
- The guidance does not state specifically whether COVID-19 is a serious health condition under the FMLA;
- Employees who stay home simply to avoid contracting COVID-19 are not covered under the FMLA;
- Employees should remember that Title VII anti-discrimination laws apply with respect to employer policies and decisions, even amid COVID-19; and
- Employers may require a doctor’s note prior to returning to work.