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Peg Donahue Hall

Partner

Spencer Fane attorney Peg Donahue Hall

T 214.459.5882
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phall@spencerfane.com

Summary of Recent Agency Activity on Employment-Related COVID-19 Issues

Last week (April 4-12), several federal agencies issued updated guidance for employers on issues relating to COVID-19, including:

EEOC Updates COVID-19 Guidance

On April 9, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance for employers entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” found here. Previously issued guidance explained that employers may, under pandemic conditions, ask employees about whether they are experiencing certain symptoms. The EEOC further stated that employers may also implement other measures to protect against spread of COVID-19 due to the novel coronavirus in the workplace. The guidance further noted that if employers do receive health information from employees, the information must be maintained confidentially, and consistent with other requirements under the Americans with Disabilities Act (the “ADA”).

COVID-19 Emergency Paid Sick Leave and Family Medical Leave: Updated Department of Labor FAQs

The Department of Labor (the “DOL”) issued FAQs regarding the Families First Coronavirus Response Act (the “FFCRA”) and has updated its FAQs multiple times by adding questions to the same document.  The FAQs can be found here. The most recent update occurred on March 28, 2020 and addressed many of employers’ questions that were initially left unanswered in the FFCRA and the initial FAQs.

COVID-19 Emergency Paid Sick Leave and Family Medical Leave: An updated notice and more from Department of Labor

As of Friday, March 27, the Department of Labor has issued an updated notice on its website, as well as responses to additional questions about the Families First Coronavirus Response Act (the “Act”). The new notice can be found here: FFCRA Poster.[1]  The updated notice clarifies that employees may have a total of up to 12 weeks of leave, paid at 2/3 of pay, to care for a child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons.

COVID-19 Emergency Paid Sick Leave and Family Medical Leave: Updates from Department of Labor

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “Act”). We outlined the key provisions of this law here. Since the publication of our original article, the Department of Labor Wage and Hour Division, which will enforce the new law, has published updated guidance about the new law. The Department has now clarified that the law will officially take effect on April 1, 2020, and applies to leave taken between April 1, 2020 and December 31, 2020.  The new law also requires that employers post notice regarding the new law, and a model notice has been published. It can be found here.

COVID-19 Emergency Paid Sick Leave and Family Medical Leave: Key Provisions

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act, which goes into effect no later than April 2, 2020.  The new law imposes sweeping new emergency paid leave and expanded family medical leave requirements for employers nationwide.  Here is a summary of the key provisions affecting employers:

NLRB Issues Final Joint Employer Rule

The National Labor Relations Board (“NLRB”) has updated its joint employment rule (the “Final Rule”).  The Final Rule, which will be published in the February 26, 2020 Federal Register effectively overturns the joint-employer standard established in the 2015 Browning-Ferris Industries decision, which expanded the definition of joint employer based on indirect or limited control.  NLRB Chairman John Ring explained that “[t]his [F]inal [R]ule gives our joint-employer standard the clarity, stability, and predictability that is essential to any successful labor-management relationship and vital to our national economy.”    

Fluctuating Laws: DOL Announces Proposed Fluctuating Workweek Regulations

On November 5, 2019, the Department of Labor (“DOL”) published a proposal to revise regulations governing the fluctuating workweek method of calculating overtime pay under the Fair Labor Standards Act (“FLSA”). This method of calculating overtime may apply if certain conditions are met. These conditions include that the employees paid under this method work fluctuating hours, and they and their employers agree that the employees are paid fixed salary for all hours worked plus an overtime premium. There are very specific requirements for utilizing this method, but utilizing the method in a compliant manner can be complicated due to the need to calculate the regular rate of pay for every week in which the employee works more than 40 hours. Additionally, some state laws prohibit use of this method.

DOL Issues Opinion Letter on FMLA Leave and IEP Meetings

The U.S. Department of Labor/Wage and Hour Division has continued its practice of issuing opinion letters. It recently issued an opinion letter that addresses the question of whether an employee may take FMLA leave to attend a Committee on Special Education (“CSE”) meeting to discuss a child’s Individualized Education Program (“IEP”). See DOL Opinion Letter FMLA2019-2-A.

Agency Developments at the Department of Labor: The Fair Labor Standards Act

In the summer of 2019, the Department of Labor (“DOL”) made headlines when Secretary of Labor Alexander Acosta resigned. President Trump then nominated Eugene Scalia for the position, and Mr. Scalia was sworn in as Secretary of Labor on September 30. In recent months, the Senate also confirmed Cheryl Stanton as Administrator of the Wage and Hour Division.

DOL Releases Final New Overtime Rules – Effective January 1, 2020

On September 24, 2019, the Department of Labor (“DOL”) issued the final rule (the “New OT Rules”) that updates and revises the regulations which govern the exemptions from minimum wage and overtime pay requirements under the Fair Labor Standards Act (“FLSA”). Employers should carefully review the New OT Rules and the explanatory commentary. See Final Rule Announcement. The New OT Rules are set to become effective on January 1, 2020.

SCOTUS Holds that Title VII’s Charge-Filing Procedures Are Subject to Waiver

On June 3, 2019, the Supreme Court held that filing a charge of discrimination is not a “jurisdictional” prerequisite to filing suit under Title VII of the Civil Rights Act of 1964. See Fort Bend County v. Davis, Slip Op. No. 18-525 (June 3, 2019).  Although this case deals with what sounds like an obscure legal issue, it is of great practical importance to employers. In short, it means that employers defending against claims of discrimination under Title VII must diligently assert all procedural defenses they may have as early as possible. Otherwise, a failure to assert a defense may allow the plaintiff-employee’s claim to go forward, even if the employee has not technically complied with Title VII’s mandatory charge-filing procedures.

DOL Publishes Proposal Interpreting Joint Employer Status

On April 1, 2019, the Department of Labor (“DOL”) published its third proposal in 30 days to revise regulations interpreting the Fair Labor Standards Act (“FLSA”). The April 1 proposed rule would revise and clarify the test for when multiple employers (known as “joint employment”) can be held responsible for wages under the FLSA. The notice and full text of the rule can be found here.

DOL Publishes Proposals Interpreting “Regular Rate of Pay” in Overtime Regulations

Under the Fair Labor Standards Act (FLSA), employers must generally pay non-exempt employees overtime at a rate of one and one half times the “regular rate” of pay when they work more than forty hours in a workweek. Overtime cannot be properly calculated unless the employer knows what to include in the regular rate.  As benefits, bonuses, reimbursements and other elements of compensation have evolved, greater ambiguity has developed in determining what is included in and excluded from the regular rate.  On March 29, 2019, the Department of Labor (“DOL”) published a proposal (found here) to clarify and update several regulations that interpret the regular rate of pay requirement.

New FMLA and FLSA Opinion Letters Issued by DOL on Key Topics

On March 14, 2019, the U.S. Department of Labor/Wage and Hour Division continued its practice under the Trump Administration of issuing Opinion letters by releasing three new ones – its first Opinion letters of 2019.  One of the newly-released Opinion letters relates to the Family and Medical Leave Act (“FMLA”), and two of them involve the Fair Labor Standards Act (“FLSA”).