🚨DORK ALERT!🚨 The DOL answers some nerdy COVID-19 FMLA and FLSA questions.


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Perhaps they wanted to upstage my triumphant return to Zoom for a COVID-19 HR lunchtime happy hour spectacular, which is this tomorrow at noon EDT (register here). On Monday, the U.S. Department of Labor issued new COVID-19 guidance under the Fair Labor Standards Act and Family and Medical Leave Act.

Or maybe it was all coincidental, and I’m making a — wait for it — jackass of myself.

Either way, I suppose we should discuss this new guidance here on the blog.

The new DOL FMLA guidance

or, more accurately…

The new DOL FMLA guidance I cut-and-pasted below.

Due to safety and health concerns related to COVID-19, many health care providers are treating patients for a variety of conditions, including those unrelated to COVID-19, via telemedicine. Telemedicine involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices. Under these circumstances, will a telemedicine visit count as an in-person visit to establish a serious health condition under the FMLA?

Yes. Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits, and will consider electronic signatures to be signatures, for purposes of establishing a serious health condition under the FMLA. To be considered 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. This approach serves the public’s interest because health care facilities and clinicians around the nation are under advisories to prioritize urgent and emergency visits and procedures and to preserve staff personal protective equipment and patient-care supplies.

I was out on FMLA leave unrelated to COVID-19. While I was out, my company implemented a new policy requiring everyone to take a COVID-19 test before they come to the office. Under the FMLA, can my employer require me to get a COVID-19 test under this policy?

The FMLA does not prohibit the employer’s testing requirement. When your FMLA leave is over, your employer must reinstate you to the same job or an equivalent position. However, you are not protected from actions that would have affected you if you were not on FMLA leave. For example, if a shift has been eliminated, or overtime has been decreased, you would not be entitled to return to work that shift or the original overtime hours. That principle also applies here, where your employer’s requirement for testing isn’t related to your having been out on FMLA leave but instead, all employees, regardless of whether they have taken any kind of leave, are required to be tested for COVID-19 before coming to the office. Other laws may impose restrictions on the circumstances when your employer can require COVID-19 testing, and what types of tests are permitted.  See https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

which brings us to…

The new DOL FLSA guidance.

There are more new FLSA questions answered than there are FMLA, so I’ll summarize and add a little snarky commentary.

How do I pay workers that work remotely?


This pandemic has been going on for what feels like 26 months. If you’re hanging on the edge of your seat for the answer to this question, you need a lawyer post haste.

***brushes cobwebs off law school diploma***

Telework is just like work at the office; namely, it’s compensable time. It’s the same when employees perform work remotely that you don’t authorize in the first place. If you have actual or conductive knowledge of it, you need to pay for it. But, you can discipline employees that perform this work without permission.

If I allow my employees to begin work, take several hours in the middle of the workday to care for their children whose schools have closed, and then return to work, do I have to compensate them for all of the hours between starting work and finishing work?

Don’t forget the Families First Coronavirus Response Act (FFCRA). You don’t have to if you don’t want to, but you can permit employees to take paid FFCRA leave intermittently to care for kids whose schools have closed. You’ll get a tax credit too.

Can a bona fide executive, administrative, or professional exempt employee perform other nonexempt duties during the COVID-19 public health emergency and continue to be treated as exempt? 

Yep. Employees who are temporarily required to perform nonexempt duties due to COVID-19 may do so without losing the FLSA exemption, as long as they continue to be paid on a salary basis of least $684 per week.

Is hazard pay required under the Fair Labor Standards Act (FLSA) for employees working during the COVID-19 pandemic? 

No, not under the FLSA. But, check state and local law requirements.

Will using FFCRA leave convert an exempt employee to nonexempt?

No. Oh, wait a minute! Hold up a sec!

Actually, just no.

Can an employer reduce the salary of an exempt employee during the COVID-19 pandemic or an economic slowdown? How does that impact exempt status?

Yes, the employer can predetermine to reduce salary prospectively, and the employee will remain exempt as long as s/he continues to receive on a salary basis at least $684 per week.

***checks notes***

***adds blueberries to market list***

Oh, one more thing. Please do submit questions for Friday’s Zoom sesh with Stephanie Mensing and me. Stephanie is a plaintiff-side employment lawyer, but I promise not to reveal your identities to her unless she pays me in cash or scratch-off lottery tickets. So, it’s all good.


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