Allowing non-exempt workers to work unsupervised from home has always been a big no-no in the wage-hour world. Allowing this exposes the employer to claims for unpaid hours, and unpaid overtime, from  federal, state, and local laws with unforgiving penalties. Recognizing the number of non-exempt employees working from home during the coronavirus pandemic, the federal Department of Labor (DOL) released guidance on tracking telework. The key is having a clear tracking method in place to document time worked and a policy that encourages accurate time reporting.

The DOL reminds employers that employees should be paid for those hours that they were requested to work, as well as those that they worked without being requested to do so. If an employer “knows or has reason to believe” that an employee is performing work, the time must be compensated. An employer has reason to know that an employee is working when they should have acquired knowledge of the work through “reasonable diligence.” Reasonable diligence is what the employer “should have known”–not what it “could have known” if it dug through every record to reveal uncompensated work. For example, the employer is not required to comb through and review electronic device access records for every non-exempt employee to uncover off-the-clock access. However, where an employer is aware of frequent off-hours work that is uncompensated, e.g., frequent emails and text messages about work outside normal work hours, it could result in constructive knowledge of uncompensated time and possible liability.

During the pandemic, employers can exercise this “reasonable diligence” by implementing a reasonable time reporting procedure for scheduled and nonscheduled time worked to ensure that employees are accurately compensated. If an employer has a system in place, and an employee fails to report unscheduled time worked, the employer would have a defense to a claim for unpaid wages. Employers should encourage reporting hours worked and not discourage or impede accurate time reporting. For example, a policy prohibiting and refusing to compensate for unauthorized overtime would be a policy that discourages accurate time reporting. (Even unauthorized overtime should be paid, and the employee can be disciplined for his/her violation of policy.) In addition, a best practice is to include a requirement that the employee verify and confirm that the time sheet is accurate on a weekly or bi-weekly basis.

The U.S. Department of Labor (DOL) revised its April 1, 2020 regulations about who qualifies for emergency sick leave under the Families First Coronavirus Response Act (FFCRA) after parts of its prior regulations were struck down by a New York federal court on August 3, 2020 (see earlier blog post). The NY court struck down four provisions of the prior regulations:

  1. The requirement that work be “available” in order to take FFCRA leave from work;
  2. The requirement that all intermittent use of FFCRA leave requires employer permission;
  3. The broad definition of the “health care provider” exclusion from coverage; and
  4. The requirement of documentation for taking paid FFCRA sick leave.

The new temporary rules take effect September 16th. The key portions of the new rules are as follows:

  • Employees can only take FFCRA sick leave if there is work from which to take leave–meaning that employees on layoff or furlough are not eligible (re-affirming the provision that the court struck down);
  • Intermittent leave is only available with employer permission for childcare or school unavailability and for intermittent telework (re-affirming the provision that the court struck down);
  • The definition of a “health care provider” (that is exempt from FFCRA paid leave) was narrowed to those employees “capable of providing healthcare services” such as “diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care”;
  • Employees must provide documentation to support the need for leave “as soon as practicable,” which, in most cases, will be when the notice is provided; and
  • Codified Q&A documents issued by the DOL since the initial regulations were published.

Notably, the NY court struck down the original regulations requiring available work, but the DOL reinstated the requirement. The DOL explained that the work-availability requirement was intended to apply to all forms of expanded FMLA and emergency sick leave and that the FFCRA statutory language supports that interpretation. Employees on furlough or laid off from work must rely on other programs for pay, such as Paycheck Protection Program funds or expanded unemployment benefits. The DOL cautioned, however, that employers may not withhold work in order to prevent use of FFCRA paid sick and family leave. Doing so would be considered actionable retaliation under the FFCRA.

As for intermittent leave, the DOL reaffirmed its position that intermittent leave requires employer permission and is only available for school and childcare unavailability and intermittent telework. To allow intermittent leave for care for a family member who is ill with COVID-19 or quarantined would be a safety risk to the workplace by increasing the likely spread of COVID-19. Employees who are teleworking may take intermittent leave with employer permission for any of the available FFCRA sick and family leave reasons because the exposure risk in the workplace is eliminated. Interestingly, the DOL stated:

the employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent. In an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee.

It is only when the intermittent leave is the employee’s choice that it requires employer approval.

The temporary regulations remain in place until December 31, 2020.


On September 14, 2020, Ohio passed and the Governor signed House Bill 606, which provides qualified immunity to healthcare providers and employers who are accused of spreading COVID-19. It will become effective on December 13, 2020 (90 days after signed into law).

Section 1 of the law provides qualified immunity to healthcare providers providing services during the coronavirus pandemic. It applies to actions taken from March 9, 2020 to September 30, 2021. The new law does not apply if the provider’s actions amounted to reckless disregard for the consequences to the patient’s life or health or intentional misconduct.

Section 2 applies to employers and businesses faced with lawsuits from employees and the public, stemming from injury, death, or loss from alleged exposure in the place of business. It applies to lawsuit alleging exposure, transmission, or contraction of COVID-19 in a place of business, unless the business owner’s (or employer’s) actions amounted to reckless conduct or willful misconduct. Reckless conduct is defined as disregarding a substantial and unjustifiable risk of exposure or transmission of COVID-19.

Government orders, recommendations, and guidelines may not be used to establish the requisite duty of care because, according to the statute, recommendations are often changing and “often not based on well-tested scientific information.” There is no definition of “willful misconduct” in either section of the law.

HB 606 is a temporary law, and it will expire on September 30, 2021.

The EEOC updated its Q&As on COVID-19 and the pandemic in light of the ADA and Rehabilitation Act. The highlights are as follows:

  • Employers may:
    • Require accurate and reliable COVID-19 tests in order to decide who may return to work when employees will be physically entering the workplace.
    • Ask employees who will be physically entering the workplace if they have been diagnosed with, tested for, or exposed to anyone with COVID-19.
    • Ask employees who will be physically entering the workplace if they have symptoms associated with COVID-19.
    • Exclude employees with COVID-19 related symptoms or exposure from the physical workplace.
    • Bar employees from the physical workplace if the employees refuse pre-work screenings (e.g., questions about symptoms or temperature screenings).
    • Ask employees who will be physically entering the workplace about where they have traveled before allowing their return to work.
    • Screen applicants for COVID-19 symptoms at the post-offer stage.
    • Withdraw an offer or postpone a start date if an applicant has COVID-19 or related symptoms if the employee will be physically entering the workplace.
    • Be excused from responding as quickly to accommodation requests because of unexpected or increased reasonable accommodation requests.
  • Employers may not:
    • Use anti-body testing as a requirement for returning to work.
    • Ask employees who are teleworking if they have COVID-19 symptoms or have been exposed to COVID-19.
    • Ask only some employees about COVID-19 exposure or symptoms, unless there is a reasonable belief, based on objective evidence, that this person may have the disease.
    • Ask employees about family members who have COVID-19 or symptoms associated with COVID-19. To do so would violate the Genetic Information Nondiscrimination Act (GINA). Employees can be asked about contact with anyone diagnosed with COVID-19 or with COVID-19 related symptoms, but the inquiry cannot be specific to family members.
    • Disclose to others why an employee is on leave or teleworking (if due to COVID-19 symptoms, quarantine, or diagnosis).
    • Terminate, fail to hire, or place on leave employees who are at high-risk to have COVID-19 complications.
  • It is not a confidentiality violation if:
    • An employee reports that another employee has symptoms associated with COVID-19.
  • An employer is not required to:
    • Provide the same accommodations during telework that were provided in the workplace, if they are not feasible during the temporary telework period.
    • Grant telework for every disability as an accommodation after the workplace reopens.

A link to the guidance, here.

In late July, a group of fourteen grocery store workers sued a supermarket chain, alleging that it discriminated against employees when it banned the wearing of Black Lives Matter or BLM masks at work. The lawsuit alleges that the company disciplined, and in one case, terminated, employees for wearing masks supporting the racial justice and political movement. In its defense, the employer said that it enforced a neutral dress code policy prohibiting all visible slogans, messages, advertising, and logos not affiliated with the company. The plaintiff-employees allege that the employer allowed other messages and logos (e.g., rainbow flags in support of LGBTQ rights and sports logos).

The facts will bear out as this case proceeds, and it should be noted that other employers have taken a similar stand on neutral dress code policies banning messages on shirts and face masks.

This case serves as a warning to employers to ensure that they uniformly enforce neutral dress code policies. If such a policy is adopted, employers must ban all messages and logos–not just the ones that are controversial or against the employer’s own beliefs. Likewise, employers also should ensure that they enforce neutral non-solicitation and non-distribution policies against all forms of solicitation and distribution. A failure to do so could result in similar claims to this case, as well as potential labor law problems in the event of union organizing. Notably, the grocery store employees also filed an unfair labor practice, alleging that the company interfered with their rights to concerted activity to improve working conditions.

The case is Frith v. Whole Foods Market Inc., Case No. 1:20-cv-11358 in the U.S. District Court for the District of Massachusetts.

On August 8, 2020, President Trump issued a Presidential Memorandum allowing employees to have a tax “holiday” deferring the normal employee payroll tax withholding for social security (6.2% of wages) from September 1-December 31, 2020. This was designed to provide a much needed boost to employees in their take-home pay. Unfortunately, it comes with a host of administrative burdens for employer payroll compliance that may make it not worth the trouble.

First, how does it work?

Employers are permitted–but not required–to omit the normal 6.2% withholding for social security tax for the next four months (9/1/20-12/31/20). (Note, this applies only to the employee’s share of social security tax and not the 6.2% tax paid by employers.) Under normal circumstances, the employer would then double withhold in the first four months of 2021 (1/1/21-4/30/31). The deferred tax must be repaid by April 30, 2021.

Sounds great. What are the problems?

  • The Executive Order was issued on August 8th, and the IRS issued a 2.5 page guidance document on August 28, 2020, leaving employers scrambling to comply by September 1, 2020.
  • Many third-party payroll vendors have been slow to interpret the payroll tax deferral and program their payroll software for compliance.
  • The “holiday” applies only to employees with bi-weekly earnings of less than $4000 per week (or the equivalent threshold amount), meaning that, for most employers, there would be covered and non-covered employees. This creates added administrative complexities, especially if employee pay varies from week to week due to overtime, bonuses, or commissions.
  • The $4000 threshold is a cliff not a phaseout–meaning that, once the $4000 threshold is reached, the employee does not qualify for the tax deferral at all. An employee earning $3999.99 will qualify for a deferral, but an employee earning $4,000.01 would not.
  • Many employees will enjoy the added 6.2% net pay for four months but not understand that their net pay will drop 12.4% in January 2021, resulting in employee financial hardships.
  • If employees terminate employment before withholding amounts are repaid in the first four months of 2021, the tax burden is on the employer the pay the tax. The employer’s only recourse is to collect the money from the employee. If the employee is still owed wages when the employee terminates, the employer could withhold the amount remaining to be repaid; however, the employer must still pay the employee at least the state and federal minimum wage, as required by law. It is possible that the employer will be left holding the bag for some portion of the deferred tax.
  • Ultimately, employers must repay the deferred tax amounts by April 30, 2021 or face penalties, additional tax, and interest, even if they have not recovered the amounts from the employees.

What might happen?

The last time there was a payroll tax holiday the deferred tax was later forgiven by statute. It is notable that, only a statute, passed by Congress and signed into law by President Trump or the incoming president in January 2021, can forgive the deferred tax obligation. President Trump has vowed to forgive the deferred tax if re-elected.

What should employers do?

Employers should weigh the short-term benefits to employees against the administrative burdens, tax liability risk, and the financial burdens to employees in 2021 if the amounts are not forgiven. Employers can elect not to participate in the payroll tax holiday if they so choose.

The Department of Labor (DOL) released new model forms for requesting FMLA leave and notifying employees of their rights:

Employers are free to use these forms or create their own that are similar in the information requested and in the notification of basic FMLA rights and obligations.

The DOL has not, however, released forms for FFCRA family or sick leave related to COVID-19, which remains available to employees through 12/31/20 who work at employers with less than 500 employees.

The EEOC released two new guidance documents for employers on handling opioid abuse and addiction in the workplace. The first, Use and Misuse of Codeine, Oxycodone, and Other Opioids: Information for Employees, is intended for employees and describes what is and is not a covered disability. This guidance document makes it clear that the Americans with Disabilities Act (ADA) does not protect current illegal drug use. This means that employers can terminate an employee for a positive drug test or for illegal drug use, possession, etc. in the workplace. Employees, however, in treatment for opioid addiction or otherwise legally receiving opioids as treatment are protected from discrimination based on the use of the medication. In addition, the ADA protects employees from discrimination based on a past history of opioid addiction. Employers may still address any safety related concerns that might accompany an employee’s use of legal prescription opioids.

The second document, How Health Care Providers Can Help Current and Former Patients Who Have Used or Misused Opioids Stay Employed is intended to help healthcare providers educate their patients on their employment rights. The healthcare providers may be called upon in the interactive process under the ADA to explain the opioid medication’s use and address safety concerns. Healthcare providers also play an integral role in helping employers understand the opioid treatment process and what will (or may) be required as a reasonable accommodation.

A New York federal judge struck down or limited several of the Department of Labor (DOL)’s restrictions on federal COVID-19 paid leave under the Families First Coronavirus Relief Act (FFCRA): (1) work availability requirement, (2) healthcare worker exemption, (3) intermittent leave employer consent, and (4) requirement to submit documentation before taking leave.

Work availability requirement

First, the judge struck down the limitation that employees may not use COVID-19 leave under the FFCRA if their employers do not have work for them. Basically, if an employer shuts down due to COVID-19 quarantine, government order, or lack of business, an otherwise qualifying employee cannot use FFCRA leave.

Restrictions on healthcare workers

The DOL applied the statutory exclusion for “health care providers” to any employee of a healthcare business. The judge limited the health care provider exclusion to those health care workers providing health care services to patients–not ancillary workers at health care businesses (e.g., cafeteria workers, office workers, etc.). It is unclear, however, how broadly that exemption can be interpreted.

Intermittent leave restrictions

The DOL rules allow intermittent COVID-19 paid sick and family leave only if the employer agrees to it and only if the intermittent leave would not risk the spread of COVID-19 to other employees. The court struck down the employer consent requirement but kept the restrictions on intermittent leave where virus spread is a concern–suspected infection, quarantine of the employee or a family member, or illness of the employee or a family member. As it stands, intermittent leave is available only for unavailable child care or school closures–now, without employer consent.

Documentation requirements

The judge struck down the requirement to provide documentation of the reason for leave, the duration of leave, and the authority ordering isolation or quarantine before taking leave. It appears that the employer can still require documentation–but not as a condition before taking the leave.

The National Labor Relations Board (NLRB) just made it easier to address employee outbursts involving offensive or abusive statements–including outbursts involving profane, racist, and sexually inappropriate remarks.

In General Motors LLC, 369 NLRB No. 127, a decision issued July 21, 2020, the NLRB modified the long-used Wright Line test for deciding whether protected concerted activity is a motivating factor in employee discipline. As you know, all employees, regardless of whether they belong to a union, have a right under federal labor laws to engage in “concerted activity” in the workplace. Concerted activity is when employees collectively act or discuss working conditions and terms and conditions of employment, for example, striking, picketing, handing out leaflets, raising safety concerns, complaining about wages and benefits, refusing to work in unsafe conditions, and raising concerns about other terms and conditions of employment.

What the General Motors decision does is allow an employer to terminate an employee for offensive or abusive statements, even if the employer was partially motivated by the protected concerted activity within the statement or that occurred while the employee was making the statement.

To challenge discipline or a termination, the union or NLRB must show that: (a) the employee engaged in protected concerted activity; (b) the employer knew about the protected concerted activity; and (c) the employer had animus against the protected activity. Upon that showing, the employer may lawfully discipline or terminate the employee if it can show that it would have taken the same action even in the absence of the protected activity. One way to show this is by showing consistent discipline of other employees who engaged in similar conduct, but without the concerted activity.

In the General Motors case, the employee lobbed an F-bomb at his supervisor and mocked his black supervisor by saying “Yes, Master Anthony” and mockingly acting in a caricature of a slave. These incidents came in the context of a discussion about mandatory overtime and a meeting between management and union representatives about subcontracting. Statements made in the context of these activities are normally protected concerted activity. The NLRB held that the employee’s offensive outbursts exceeded the protection of the National Labor Relations Act’s Section 7 because of its profane and racially offensive content.

The General Motors decision affects employee encounters with management, postings on social media, and statements on the picket line.