Fair Labor Standards Act (FLSA)
The U.S. Department of Labor ("DOL") has issued the following guidance concerning the impact of COVID-19 on the FLSA:
My business has a shortage of workers due to COVID-19. Can my business use unpaid “volunteers” to help out?
Generally speaking, no. The FLSA has stringent requirements with respect to the use of volunteers. In general, covered, nonexempt workers working for private, for-profit employers have to be paid at least the minimum wage and cannot volunteer their services.
How many hours is an employer obligated to pay an hourly-paid employee who works a partial week because the employer’s business closed?
The FLSA generally applies to hours actually worked. It does not require employers who are unable to provide work to non-exempt employees to pay them for hours the employees would have otherwise worked.
What are an employer’s obligations to an employee who is under government-imposed quarantine?
The Wage and Hour Division of the DOL encourages employers to be accommodating and flexible with workers impacted by government-imposed quarantines. For example, employers may offer alternative work arrangements, such as teleworking and additional paid time off.
Can my business require an employee to perform work outside of the employee’s job description?
Yes. The FLA does not limit the types of work employees age 18 or older may be required to perform.
Can an employer encourage or require employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy?
Yes. An employer may encourage or require employees to telework as an infection-control or prevention strategy. Telework may also be a reasonable accommodation. However, an employer cannot 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.
Do employers have to pay employees their same hourly rate or salary if they work at home?
If telework is being provided as a reasonable accommodation for a qualified individual with a disability, or if required by an employment or union contract, then yes. Otherwise:
If this is not the case and you do not have a union contract or other employment contracts, under the FLSA employers generally have to pay employees only for the hours they actually work, whether at home or at the employer’s office. However, the FLSA requires employers to pay non-exempt workers at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek. Salaried exempt employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions.
If the government bars employees from working from their current place of business and requires them to work from home, will employers have to pay those employees who are unable to work from home?
Under the FLSA, employees generally only have to pay employees for the hours they actually work, whether at home or from the employer’s office. However, employers must pay at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a single workweek. Salaried exempt employees must receive their full salary in any week in which they perform any work, subject to certain exceptions.
Source: COVID-19 and the Fair Labor Standards Act Questions and Answers, U.S. Dep’t Lab.