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How Does Teleworking Work Under the FFCRA? How Does Teleworking Work Under the FFCRA?

How Does Teleworking Work Under the FFCRA?

The Families First Coronavirus Response Act was signed into law on March 18, 2020. The Act (among other things) requires private employers with fewer than 500 employees (with limited exceptions) and almost all public employers to provide essentially two weeks of emergency paid sick leave and to provide Family and Medical Leave Act leave for certain absences related to COVID-19. An employee will qualify for the leaves available under the FFCRA if the employee is unable to work, or telework, due to a need for leave.

As discussed below, the Regulations provide additional clarification on the FFCRA’s definition of the term “telework” and the circumstances under which an employee is available (or unavailable) for purposes of leave eligibility. They also provide guidance on the treatment of telework under the FFCRA in relation to the Fair Labor Standards Act’s (FLSA) rules regarding the determination of compensable working hours.

Need for Leave

Employees who are able to telework during the COVID-19 crisis are generally ineligible for the leaves provided by the FFCRA. The FFRCA defines telework as work the employer permits or allows an employee to perform while at home or at another location other than his or her usual workplace. The Regulations provide that an employee may not take FFCRA leave if: (1) the employer has work for the employee to do; (2) the employer permits the employee to perform the work at home or another location that is not the employee’s normal workplace; and (3) there are no “extenuating circumstances” that prevent the employee from performing the work.

Thus, an employee who would otherwise be entitled to FFCRA leave but whose employer permits him or her to telework is ineligible for leave unless “extenuating circumstances” prevent the employee from teleworking. The Regulations provide as an example that being unable to work on one’s computer due to a power outage would be an extenuating circumstance entitling the employee to FFCRA leave (assuming the employee meets one of the COVID-19 related qualifying reasons for leave). The Regulations also provide that the employee’s own “serious COVID-19 symptoms” would be an extenuating circumstance. Where extenuating circumstances prevent the employee from teleworking, FFCRA leave is available until the extenuating circumstances are resolved. The Regulations do not mention these, but internet connectivity issues, problems with remotely accessing the employer’s computer network, needing to care for others in the household who have serious COVID-19 symptoms, or teaching multiple or young children, may be other examples of extenuating circumstances preventing telework.

Compensability of Teleworking

The Regulations also address compensability of teleworked hours. The DOL reminds employers that telework is work for which wages must be paid as required by law. Hourly nonexempt (i.e., eligible for overtime under the FLSA) teleworking employees must record their work time and be compensated for all hours actually worked, including overtime. Generally, under the FLSA, the compensable workday consists of a period of time that begins when an employee performs the first principal work activity and continues until completion of the last principal activity (the “continuous workday rule”), with deductions allowed for meal and other breaks of no less than 30 minutes (breaks longer than 20 minutes are also deductible in certain circumstances) during which the employee is completely relieved of his or her duties. However, the FFCRA Regulations provide that employers may compensate nonexempt employees who are teleworking due to COVID-19 only for time they are actually performing work that the employer knows, or should know, about. In “suspending” the continuous workday rule for COVID-19-related telework, the DOL is acknowledging that many teleworkers will not be able to devote themselves to a continuous regular workday at home, as they may be teaching young children or attending to other family responsibilities throughout the day. 

While the DOL's position seems like common sense, employers should be wary. The continuous workday rule is based upon the language of the FLSA, and it is not clear how the DOL has authority to ignore it in these circumstances. Thus, while the FFCRA Regulations likely reflect the DOL's own enforcement position for the time being, there is no guarantee that the courts will defer to the DOL's position when ruling on this issue in private lawsuits under the FLSA. Moreover, many states (and some municipalities) regulate heavily in the area of minimum wage and overtime and may not apply such a relaxed standard for determining compensable hours for the purposes of their own laws or ordinances, regardless of current circumstances. Notably, when it comes to minimum wage and overtime, the stricter of federal and state or local law will apply.

Intermittent Leave
The Regulations also attempt to clarify the availability of intermittent FFCRA leave for teleworking employees. Pursuant to the Regulations, and consistent with prior guidance from the DOL, employers may permit employees who are teleworking to take intermittent leave for the reasons that qualify under the FFCRA, but the provision of intermittent leave to teleworking employees is strictly at the employer’s option.  

To summarize, teleworking employees may have family and other responsibilities that interfere with their ability to perform work during normal work hours. Thus, the DOL encourages employers and employees to implement “highly flexible” telework arrangements, such as permitting that work be performed at various times agreed to by the employer and employee or providing intermittent leave to the teleworking employee. Such arrangements, per the DOL, will balance the needs of employees with the business needs of employers while at the same time helping contain the virus. However, given the lack of clear authority for the DOL's position on compensable hours (and the potential impact of state and local law), employers should consult with counsel regarding this issue before deviating from current practices regarding the determination of the compensable hours of non-exempt employees who are working remotely.

We will continue to monitor future guidance from the DOL and other legislation that may affect employers during this challenging time. If you have questions, please contact Manolis BoulukosTami Earnhart or Germaine Willett, or any other member of our Labor, Employment & Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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