Employers, here are some answers to your frequently asked questions about employees and the coronavirus pandemic:
If our office is closed, do we need to pay employees?
If your employees are members of a collective bargaining unit or have a contract of employment, you must first look to the relevant contract. If the contract does not speak to the employer’s obligation, the employer must next analyze the question under the Fair Labor Standards Act (FLSA).
Under the FLSA, the answer to employee pay questions begins by addressing the two relevant employee pay classifications: “exempt” and “non-exempt.”
Employees are “exempt” from the minimum wage and overtime requirements of the FLSA where the following three requirements are met: (1) the employee is paid on a salary basis, (2) paid at a minimum salary threshold amount of $684 weekly, and (3) generally speaking, primarily exercise independent discretion in the performance of their job duties. Notwithstanding narrow statutory exceptions, exempt employees must be paid their full salary for any week in which they perform any work at all.
If exempt employees perform any work at all during the workweek, including work from home or another remote location, the employees must be paid a full salary for the week. The employer may require exempt employees to use accrued paid leave when the office is closed. However, if exempt employees do not have any accrued leave available, exempt employees performing any work during the workweek must be paid their full salary.
Where your office is closed for at least a full workweek, you may have some discretion to limit salary costs. To avoid paying a full salary to exempt employees, employers are best advised to restrict prohibit exempt employees from working remotely without the approval of their supervisor. However, as explained above, unless the office is closed for a full workweek or more, you are likely obligated to pay exempt employees’ full salaries.
“Non-exempt” employees are paid on an hourly basis and must be paid for all hours worked, including a premium rate for all hours worked over 40. Non-exempt employees do not need to be paid unless they are working.
Even if you did not specifically instruct non-exempt employees to work remotely, where you or your customers exchanging calls and emails from the employee, you may still be obligated for employee pay. If non-exempt employees are required or permitted to work remotely, all hours must be carefully tracked and compensated. When non-exempt employees work more than 40 hours, they must be paid at a time and a half rate. To limit overtime exposure, employers may restrict non-exempt workers hours worked to only those hours that are approved by a supervisor.
If we stop paying employees, will employees be eligible for unemployment compensation?
Employees who, through no fault of their own, had their hours reduced may be eligible for unemployment compensation (UC), even if the employer anticipates resuming full-time hours. To be eligible based on reduced hours, the employee must be available for full-time work and be willing to work as many hours as the employer has available.
If an employee contracts the Coronavirus, will we be liable for workers’ compensation?
Workers’ compensation covers only job-related illnesses or injuries. For Coronavirus to be covered, an employee would need to establish a connection between the workplace and the disease. Although workers’ compensation carriers are not entirely sure how the transmission of the Coronavirus will be addressed, the best advice is to exercise reasonable care with respect to your workforce. More specifically, employers should be guided by the recommendations of the Center for Disease Control and other similar agencies to prevent employees from contracting Coronavirus in the workplace. Employees who are experiencing symptoms should be encouraged and supported in going home.
We understand that this may be an unprecedented time of disruption and confusion to your workplace. Please do not hesitate to contact us with any questions.
HR Law Update is a publication of the KingSpry Employment Law Practice Group. Keely Jac Collins is managing editor. HR Law Update is meant to be informational and does not constitute legal advice.