The Families First Coronavirus Response Act (FFCRA) provides necessary guidance to employers regarding teleworking. Because employees who are able to telework are exempt from receiving benefits under FFCRA, employers must clearly define who is considered a teleworker. According to the Department of Labor (DOL), remote work is “no less work than if it were performed at an employer’s worksite.”

Under the Fair Labor Standards Act (FLSA), the continuous workday rule mandates that employees who work remotely must be paid for a period of time that starts when work activity begins and ends upon the completion of the last work-related activity of the day. However, under the FFCRA regulations, employers are only responsible to pay teleworkers for time spent engaged in work activity. In other words, employers are not responsible to pay remote workers for unreported work time under FFCRA. Thus, employers should develop a protocol for all employees working remotely to record time spent actually working and to keep remote workers attentive to time-keeping responsibilities.

An employee who is unable to perform his/her work remotely due to a COVID-19-related reason is considered unable to work under the FFCRA. Employees who are working remotely are permitted to take intermittent leave if the employee meets one of the qualifying reasons under the FFCRA. However, intermittent leave for teleworking employees is left to the discretion of employers. The employee and employer must agree to the leave schedule and basis.
Best practices for employers who employ teleworkers under the FFCRA include but are not limited to:

• Employers must clearly define which employees qualify as teleworkers.
• Employers must remind remote workers to keep accurate records of remote work activity.
• Intermittent leave for teleworking employees remains at the discretion of employers.

If you have questions about your existing policy, transitioning employees back to work or time and record-keeping requirements, please contact one of the attorneys in our Employment Law Group at 1-888-488-2638 for guided counseling to avoid unnecessary mistakes.