August Round-Up of Important DOL Guidance and Regulations
During the month of August, the Department of Labor (DOL)’s Wage and Hour Division (WHD) issued a variety of regulations and guidance documents focusing on key employment issues related to COVID-19, including the paid leave policies within the Families First Coronavirus Response Act (FFCRA) and employers’ responsibility to track telework hours. Below is a brief overview of these actions.
Families First Coronavirus Response Act
On August 3, a federal judge in the Southern District Court of New York struck down several provisions in the WHD’s regulations implementing the paid leave benefits in the FFCRA.
Under the FFCRA, eligible employees are allowed to take up to two weeks of paid sick leave and up to 12 weeks of expanded family medical leave, 10 of which would be paid, for specified reasons related to COVID-19, including an employee’s need to care for their child whose school is closed or whose childcare provider is unavailable due to COVID-19. The state of New York challenged the WHD’s regulations implementing these policies, arguing that they were too restrictive and left out employees that the law was intended to cover.
The judge struck down three major provisions of the WHD regulations:
- the provision that defined a healthcare worker to include administrative and HR personnel of healthcare facilities, which meant that these employees were ineligible for the paid leave provided under the FFCRA;
- the provision exempting employees from FFCRA paid leave if their place of work shut down in response to COVID-19; and
- the provision on intermittent leave, which allowed employees to take leave in small increments only if their employer agreed to the arrangement.
The DOL can now either appeal the decision or begin to revise its regulations, but it is unclear if such changes would affect the entire country or just the state of New York.
Despite the ruling, WHD issued new guidance on the FFCRA on August 27 by expanding upon their running list of FAQs explaining how the provisions of the FFCRA should be interpreted. The new FAQs clarify that an employee may qualify for FFCRA leave if their child’s school requires remote learning, either part- or full-time, and the employee has to supervise the child at home due to the lack of alternative childcare options. The guidance further explains that an employee is NOT eligible to take FFCRA leave if he or she chooses to keep their child at home for remote learning rather than sending them to school if the school gives the employee the option.
Tracking Telework Hours
On August 24, WHD issued a new field assistance bulletin explaining an employer’s obligation to track the number of compensable hours worked by employees who are teleworking or otherwise working away from the premises controlled by their employers. The bulletin states that an employer must pay its employees for all hours worked, including work not requested but permitted and work performed at home. If the employer knows or has reason to believe that work is being performed by an employee, the time must be counted as hours worked.