COVID-19 FAQ: Wage and Hour

Answer 1. Yes, as long as the policy and applicable state and local laws allow it.

A2. Yes, as long as the policy and applicable state and local laws allow it, and the exempt employee’s overall salary/pay is not docked, pay can be taken from the PTO category in less than full-day increments. The DOL recently acknowledged the permissibility of these practices under federal law in its pandemic guidance posted on March 9, 2020.

A3. The DOL Wage and Hour Division recently reminded employers that they are required to pay non-exempt employees only for hours worked. Thus, if an employer is forced to close its business temporarily due to COVID-19 issues, you are not required to pay non-exempt employees for hours the non-exempt employees do not work, even though they may have been scheduled to work. However, employers should evaluate any applicable state wage and hour laws to ensure they do not contain different or additional requirements or provisions. In addition, employees may be entitled to unemployment compensation or other state benefits during closures or other periods away from work necessitated by COVID-19. See our FFCRA FAQs.

A4. For exempt employees, it depends on whether the absence is initiated by the employer or by the employee.

• If the absence is initiated by the employee (including for his or her own illness or that of someone for whom he or she is caring), the employer may dock the exempt employee for full-day absences only.
• If the absence is initiated by the employer (e.g., the employee must stay home for a mandatory quarantine period, even though he or she is asymptomatic and willing to come to work), the employer may dock the exempt employee only for full seven-day absences that coincide with the employer’s pay week.

Employers should consider the impact docking exempt employees’ pay may have on whether employees will continue to voluntarily stay at home when they feel sick, disclose that they feel sick, or disclose that they have traveled to a high-risk area, if there is a perception that they will suffer a financial consequence for doing so.

A5. If an employer requires an employee to work remotely who is not normally set up to do so, the employer may need to reimburse employees for any additional phone, internet, or other expenses incurred (beyond what the employee would otherwise have paid for their personal use) to enable the employee to telework at the company’s request. While not directly addressing whether employers must reimburse home expenses used in the course of telework, the DOL advised that if employers require a non-exempt employee to work from home, employers may not require the non-exempt employee to pay for business expenses, where doing so reduces the non-exempt employee’s earnings below the required minimum wage or overtime compensation. For exempt employees not subject to required minimum wage or overtime requirements, additional phone, internet, or other expenses may be viewed as impermissible deductions under the FLSA “salary” basis test. Employers should evaluate any applicable state wage and hour laws to ensure they do not contain different or additional requirements or provisions.