We are all aware of the on-going implications to employers as the Coronavirus, both confirmed cases and concerns from employers and employees alike, spreads rapidly across our region.  Cipriani & Werner, P.C. is prepared to help our clients address these issues and develop policies and strategies.  This Alert addresses employees who either: (1) ask to work from home; or (2) are not permitted to enter the workplace.

FAIR LABOR STANDARDS ACT (FLSA) AND PAY DEDUCTIONS FOR EMPLOYEES

Non-Exempt Employees

• Generally employees who are non-exempt under the FLSA are paid only for hours worked.  During a pandemic, an employer need not compensate a non-exempt employee if the employee misses work.  An employer may send an employee home and treat the time off as unpaid.  In both instances, however, the employer can exercise flexibility and allow the employee to use any accrued time: sick time; vacation time; and/or PTO.  This is regardless of whether the employee or the employer initiates the absence. Thus, non-exempt employees directed by their employer not to report to work and not to work from home generally need not be paid.  Those employees may be permitted to use accrued paid time off.

Exempt Employees

• If an exempt employee misses work due to sickness or disability and the employer does NOT have a bona fide sick leave policy, the employer may not deduct an exempt employee’s pay for any time, unless the employee misses an entire work week.  29 C.F.R. §541.602(a). 

• Employees who are exempt from the overtime requirements are paid on a salary basis, regardless of the number of hours worked.  With limited exceptions, an exempt employee receives his full salary for any week in which he works, regardless of the number of days or hours worked.  The employer need not pay an exempt employee for any work week in which no work is performed.  29 C.F.R. §541.602(a).

• If an exempt employee misses work because of illness or disability and the employer has a bona fide sick leave plan, policy or practice of providing compensation for salary loss caused by illness or disability, the employer may deduct an exempt employee’s salary, but only in full-day increments.  29 C.F.R. §541.602(b)(2).  For example, if an exempt employee misses 2-1/2 days due to illness, the employer may only deduct 2 days of pay from the exempt employee’s salary.

• An exempt employee instructed to work from home should be paid in the same manner as if the employee reported to work.  However, the issue becomes complicated when an exempt employee is instructed to stay home and is not able to work because of the nature of the job.  Therefore, if the exempt employee stays home for the entire work week and performs no work during that work week, the exempt employee need not be paid.  Again, the employee may be permitted or entitled to use accrued paid time off.  But, if an exempt employee has performed any work during the work week, the employee will be entitled to pay for the entire work week, unless the exempt employee is, in fact, infected with the Coronavirus.  If an exempt employee is infected with the Coronavirus, the employee need not be paid and must be permitted to use accrued paid time off including paid sick days.

• There is nothing in the FLSA that prohibits employers from requiring absent employees to use accrued vacation time or PTO, even in partial day increments, so long as the employer still pays exempt employees their full salary for a work week.

Cipriani & Werner, P.C. is prepared to assist you through this period.  Our Employment Practice Group is ready to answer questions, navigate employment concerns, identify your category of risk and develop a specific strategy for address.  We emphasize a calm and considered approach. This is a time and opportunity for employers to take the lead in the development of a safe and productive workplace.  Additional articles pertaining to considerations for leave, basic precautions, flexible schedules and work from home opportunities are being developed and will be disbursed in the next few days.

If there is a particular concern or need for immediate review, please contact us at 1-888-488-2638 immediately.