On July 20, 2020, the U.S. Department of Labor (DOL) announced the agency’s publication of additional guidance on applying federal employment laws in the context of the COVID-19 pandemic. The guidance is in the form of questions and answers added to sets of Q&As the agency issued earlier in the year about the operation of the federal Family and Medical Leave Act (FMLA), the Fair Labor Standards Act (FLSA) and the Families First Coronavirus Response Act (FFCRA) in workplace situations involving COVID-19.
The DOL’s new guidance on COVID-19 and the FLSA addresses topics such as teleworking and compensable time, maintaining employees’ exempt and non-exempt status, and hazard pay.
In addition to substituting “COVID-19” for “influenza” in many places, the new guidance on COVID-19 and the FMLA adds questions on whether a telemedicine appointment can establish a serious medical condition under the statute (yes, if the appointment meets certain requirements), and whether the FMLA prohibits employers from requiring a COVID-19 test of employees returning from FMLA leave (no, where the testing requirement is unrelated to FMLA leave and applies to all employees).
Employers should be aware that while the DOL’s Q&As on the FMLA continue to assert that there is no paid employee leave requirement under federal law, the FFCRA does require paid leave for specified COVID-19-related reasons.
Issues addressed by the DOL’s additional Q&As on the FFCRA include requiring employees returning from FFCRA leave to be tested for COVID-19 and the availability of FFCRA leave after a furlough.
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