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Employment Law Notebook

With School Schedules Still Far From Normal, Employees and Employers Wrestle with Making it Work, Understanding Their Options

As if the COVID-19 pandemic hasn’t created enough challenges for employers, the rollout and evolution of different school learning plans has created confusion about an employer’s obligations to adjust the schedule and shifts of employees with children in school, how employees must be paid when they spend part of their day assisting their children, and whether or not employers can reduce an employee’s pay.

Here, we break down answers to commonly asked questions and explain employer’s pay and recordkeeping obligations:

Pay/Scheduling Issues For Employers/Employees Covered By The Family First Coronavirus Response Act (“FFCRA”):

1. Can an employee take FFCRA paid expanded family and medical leave if their child’s school has a hybrid learning schedule, in which students alternate between days attending school in person and days participating in remote learning?

According to US DOL Guidance, yes, the employee is eligible for such paid leave on days (or partial days) when their child is not permitted to attend school in person and must participate in remote learning if the employee needs to care for the child during that time, no other suitable person is available to do so, and the employee is unable to telework during that time. For purposes of the FFCRA, the school is deemed closed to the employee’s child on days that the child cannot attend in person. See the US Department of Labor's website for more information on FFCRA eligibility. FFCRA leave is only available until December 31, 2020 unless Congress amends the law.

2.  Can an employee take FFCRA paid expanded family and medical leave if the school gave the employee the choice to have their child either attend in person or participate solely by remote learning and the employee chose remote learning due to concerns that the child might contract COVID-19?

According to US DOL Guidance, no, the employee is not eligible for such leave because the child’s school is not closed due to COVID–19 related reasons.  If, however, the employee’s child is subject to a quarantine order or been advised by a health care provider to self-isolate or self-quarantine, and that’s why they are not going to school to learn, then the employee would be eligible for paid emergency sick leave under the FFCRA.

3If the school of an employee’s child starts the school year under a remote learning program for a COVID-19 reason, but plans to open in some capacity later on, can the employee take FFCRA paid expanded family and medical leave during the remote learning time?

According to US DOL Guidance, yes, the employee would be eligible for paid expanded family and medical leave under the FFCRA while the school remains closed if the employee needs to care for the child during that time, no other suitable person is available to do so, and they are unable to telework during that time.

4. If an employee is eligible for FFCRA leave in one of these scenarios, and the employer requests a schedule change or the opportunity to work remotely on days their child is doing remote learning, must the employer agree to these requests? 

The U.S. DOL encourages employers and employees to collaborate to achieve flexibility and meet mutual needs.  Sometimes a schedule can be modified so the employee is just working different hours of the day and not less hours. If that’s the case, no FFCRA leave is needed. The schedule is just adjusted and the employee is paid normally.

5. What if an employer agrees to allow the employee to spend part of their work day caring for their children, and this reduces their number of hours worked how does this affect the employee’s pay?

Answer for nonexempt employees:

If the employee is eligible for FFCRA pay, they get paid FFCRA pay for the hours spent on childcare and not working (2/3 of their regular rate up to $200 per day) and their regular rate of pay for the hours they actually do work.

If employee is not eligible for FFCRA pay, the employee is only paid for hours the employee actually works but also could be eligible for Pandemic Unemployment Assistance through Dec 31 if the employee can’t work due to the need to care for children and no FFCRA is available.

Answer for exempt employees:

If the employee is eligible for FFCRA pay, they get paid FFCRA pay for the time with children (2/3 their regular rate of pay up to $200 per day) and paid their regular rate of pay for the rest of hours/week in which they actually work.  U.S. DOL says paying the employee different rates like this this will not change their exempt status even if the weekly pay drops below $684 in weeks in which they receive FFCRA pay.

If the employee is not eligible for FFCRA, the normal rule for exempt employees applies, which is that an employer must pay exempt employee the same salary each week regardless of days worked as long as they work at least 1 day in work week.

Reducing Employee Wages

Can an employer reduce an employee’s salary after hire?

Employers are free to reduce the wages paid to any employee as long as there is no employment or collective bargaining contract between the employer and employee dictating wages, and for New Jersey employers, the employer reduces the wages after first giving the employee notice of the reduction before the new compensation is applied to their working time. (This is a NJ Wage Payment Law requirement).  However, employers must still pay nonexempt employees at least the minimum wage and must still pay exempt employees at least $684 per week even if their hours drop significantly. If reducing the salary of an exempt employee reduces their weekly salary below $684 per week, the employee loses their exempt status and must be paid hourly and overtime for hours worked over 40 in a workweek. This is because the Fair Labor Standards Act ("FLSA") does not have a different minimum salary for full-time and part-time salaried, exempt employees. 

Exempt Employees Doing Nonexempt Work

If during the COVID-19 public health emergency, an exempt salaried employee  performs nonexempt duties that are usually done by a nonexempt worker (for example an administrative assistant, receptionist, etc.) who is taking FFCRA leave on certain days to care for their children, does the exempt salaried employee lose their exempt status?

No. As long as a local, state or the federal government has declared a period of time to be a public emergency, exempt employees can temporarily do nonexempt duties as long as the employer pays them at least $684 per week and the employee’s regular duties satisfy one of the duties tests for exempt status.  This is due to an  FLSA regulation that creates an exception for emergencies that threaten employee safety, are “beyond the employer’s control and could not be reasonably anticipated”.  US DOL has said the COVID-19 pandemic is such an emergency.

Nonexempt Employees Working From Home for First Time

If a nonexempt worker spends part of their day caring for their children during remote learning and part of their day working from home, what does an employer have to do to track the work time and to pay for any work done beyond scheduled work hours?

If an employer “knows or has reason to believe” work is being done, that time counts as hours worked that must be paid for.  This is true whether or not the employer asked the employee to do  the work. This means what the employer knows or should have known through “reasonable diligence” must be paid.  Managers should be setting and approving work assignments and schedules every week so all have an expectation of when employees are expected to be working and not working and what they are working on.

The U.S. Department of Labor says that employers do not need to install tracking software to track every keystroke of a nonexempt employee who works from home, but that they should be giving employees access to a timekeeping system that will track their hours actually worked (scheduled or unscheduled) at all hours in which work could possibly be done.

If the employee is eligible for FFCRA pay or are using some other statutorily provided or employer provided paid time off for the time the employee spends assisting their child with remote learning, the employee should also be able to enter this paid time off into the system. 

If an employee fails to report unscheduled hours on the timekeeping system, the U. S. Department of Labor says that the employer does not have an obligation to investigate beyond the time records to determine the hours worked unless the employer learns through some other reason that the employee worked additional hours beyond those recorded.  In that instance the employer should review other information available to it to ascertain whether additional time was worked.