The U.S. Department of Labor announced the Essential Workers, Essential Protections Initiative on April 26, 2021. The Initiative is designed to educate workers on the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). According to the Wage and Hour Division’s principal deputy Administrator Jessica Looman, the initiative seeks to protect workers in “occupations where workers are more likely to be the victims of wage theft or to work in environments that put them at risk of exploitation.” It also offers information for employees on their entitlement to sick leave and pay under federal law.

The Initiative includes a new webpage containing links to several federal employment resources. Employees can also sign up for webinars throughout the month of May. These webinars address topics such as “Federal Labor Laws and Workplace Rights,” “Essential Protections for Union Members and Representatives,” “DOL/WHD/OSHA Essential Protections,” and several state-specific laws.

Frequently Asked Questions

The initiative also provides Frequently Asked Questions pages related to pay and sick leave. The FAQs dedicated to the FLSA explore several areas of compliance related to compensable time. For example, multiple FAQs address when an employer must pay employees for temperature checks and health screenings. Under the guidance, employers must pay for screenings before normal working hours when it is an “integral and indispensable” part of the employee’s jobs. And for those employees who complete health screenings during the workday, the FAQs say the time is always compensable, given that it does not fall within one of 29 C.F.R. 785’s exceptions.

The FAQs dive into more complex issues too, such as when an employer must pay employees for COVID-19 testing. Under the FLSA, employers must pay employees for time spent waiting for and receiving medical attention at their direction or on their premises during normal working hours. But, if the employee needs to obtain a test on their day off, employees must be paid when the testing is necessary for the employee to perform their jobs safely and effectively during the pandemic.

As for teleworking, the FAQs clarify employers can require their employees to telework as an infection-control or prevention strategy, but they cannot single out employees for telework in a discriminatory manner.

Lastly, the FAQs address other common FLSA compliance issues, such as donning and doffing considerations, unauthorized deductions for business expenses when doing so affects minimum wage compliance, hazard pay for public employees and employees of government contractors, break time for nursing mothers, and regular rate calculation considerations.

Best Practices for Employers

It’s no surprise that the pandemic has created several novel wage and hour concerns for employers. The DOL’s initiative serves as a reminder of the importance of maintaining clear and accurate procedures for reporting, tracking, verifying, and paying for all hours worked. Employers should ensure that their employee certifications of time records are truthful and complete, and that designated management personnel promptly review those records as soon as possible after submission. Employers need to also monitor potential leave and pay issues related to COVID-19 testing.

If you have any questions about wage and hour compliance or COVID-19 employment law compliance, please contact a member of Dinsmore’s Employment Law practice group.