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DOL’s Wage and Hour Division adds resources on COVID-19-related obligations

By Pamela Wolf, J.D.

New FAQs address compensation, teleworking, nursing mother, and sick and family medical leave issues.

On April 26, the DOL’s Wage and Hour Division announced that it has launched the Essential Workers, Essential Protections initiative to help make sure that workers know about the wage and hour laws that protect them, and how to contact the department should they need help. The WHD also published a blog article to underscore the initiative.

FAQs. The resources include FAQs that address pandemic-related scenarios that workers, advocates, and employers may face. These include questions about pay, break time for nursing mothers, and sick and family and medical leave.

Compensation. Several FAQs are directed to employee compensation under the FLSA for temperature checks, health screenings, and COVID-19 tests, with the following points made in response:

Temperature checks before workday. When an employer requires all employees to take their temperature in order to screen for people who might have COVID-19 before entering the job site, employers may or may not be required to pay employees for time spent getting temperatures taken. Under the FLSA, an employer is required to pay for all hours an employee works, including for time before beginning normal working hours if the task required to be performed is necessary for the work that the employee does. For many employees, undergoing a temperature check before they begin work must be paid because it is necessary for their jobs.

For example, if a nurse who performs direct patient care services at a hospital is required to check her temperature upon arrival at the hospital before her shift, the time that she spends checking her temperature upon entry to the worksite is likely compensable because such a task is necessary for her to safely and effectively perform her job during the pandemic. In other words, the temperature check is integral and indispensable to the nurse’s job.

Temperature checks after workday begins. When the employer requires the employee to have a temperature check onsite to screen for people who might have COVID-19 after the employee has started work for the day, the time spent waiting for and undergoing the temperature check must be paid. All time between the start and finish of an employee’s workday must be paid unless it falls within one of the exceptions in 29 C.F.R. Part 785, such as bona fide meal breaks and off-duty time. WHD regulations require that employees be paid for time spent waiting for and receiving medical attention required by their employer during the workday. The same logic applies to a temperature check required by the employer during the workday.

Self-health screening. If an employer requires employees to complete a COVID-19 health screening for themselves during the workday, the employer must pay the employees for that time. All time between the start and finish of an employee’s workday must be paid unless it falls within one of the exceptions in 29 C.F.R. Part 785, such as bona fide meal breaks and off-duty time. WHD regulations require that employees be paid for time spent waiting for and receiving medical attention required by their employer during the workday. The same logic applies to a COVID-19 health screening required by the employer during the employee’s workday.

COVID-19 testing during workday. When an employer requires COVID-19 testing during the workday, the employer must pay the employee for time spent waiting for and receiving medical attention at their direction or on their premises during normal working hours.

Testing on days off before return to work. Where the employer requires employees to undergo COVID-19 testing on their day off before they can return to the jobsite, employers may or may not be required to compensate employees for time spent for testing. Under the FLSA, employers are required pay employees for all hours that they work, including for time on a vacation day if the task the employee is required to perform is necessary for the work the employee is paid to do. For many employees, undergoing COVID-19 testing may be compensable because the testing is necessary for them to perform their jobs safely and effectively during the pandemic.

For example, if a grocery store cashier who has significant interaction with the general public is required by her employer to undergo a COVID-19 test on her day off, such time is likely compensable because it is integral and indispensable to her work during the pandemic.

Teleworking. The FAQs also discussed these aspects of teleworking:

  • Employers may encourage or require employees to telework (i.e., work from an alternative location such as home) as an infection control strategy. Telework also may be a reasonable accommodation for a qualified person with a disability. However, employers must not single out employees either to telework or to continue reporting to the workplace on a basis prohibited by any of the Equal Employment Opportunity laws.
  • As to any additional expenses incurred by working from home (for example, internet access, computer, additional phone line, increased use of electricity, etc.), under the FLSA, an employer may not require employees to pay for items that are the employer’s business expenses if doing so reduces the employees’ earnings below the required federal minimum wage or overtime compensation due in any workweek.
  • OSHA does not have any regulations regarding telework in home offices. The agency issued a directive in February 2000 stating that it will not inspect employees’ home offices, will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees. If OSHA receives a complaint about a home office, the complainant will be advised of OSHA’s policy. If an employee makes a specific request, OSHA may informally let employers know of complaints about home office conditions but will not follow up with the employer or employee.
  • Employers that are required to keep records of work-related injuries and illnesses will continue to be responsible for keeping such records for injuries and illnesses occurring in a home office.

National webinar schedule. The WHD also continues to host more webinars nationwide and encourages stakeholders to register or an upcoming event.

Worker Rights webpage. In addition, the WHD has revamped its “Worker Rights” webpage to better share information about essential protections.

Coming up. In the coming weeks, WHD will share more multilingual materials for essential workers, including radio public service announcements, social media posts via Facebook and other platforms, and other materials, including posters to be displayed in neighborhood gathering spots.