{"id":10595,"date":"2026-05-06T11:30:43","date_gmt":"2026-05-06T11:30:43","guid":{"rendered":"https:\/\/usatrustedlawyers.com\/blog\/u-s-department-of-labor-issues-new-covid-19-guidance-on-flsa-fmla-and-ffcra-leave\/"},"modified":"2026-05-06T11:30:43","modified_gmt":"2026-05-06T11:30:43","slug":"u-s-department-of-labor-issues-new-covid-19-guidance-on-flsa-fmla-and-ffcra-leave","status":"publish","type":"post","link":"https:\/\/usatrustedlawyers.com\/blog\/u-s-department-of-labor-issues-new-covid-19-guidance-on-flsa-fmla-and-ffcra-leave\/","title":{"rendered":"U.S. Department of Labor Issues New COVID-19 Guidance on FLSA, FMLA, and FFCRA Leave"},"content":{"rendered":"\n<div id=\"contentSummaryCollapse\" style=\"--intro-p-height: 10.3125rem;\">\n<div class=\"inner-collapse\">\n<p>May 6, 2021 Update. On April 26, 2021, the U.S. Department of Labor (\u201cDOL\u201d) announced the <a href=\"https:\/\/blog.dol.gov\/2021\/04\/26\/essential-workers-essential-protections\" target=\"_blank\" rel=\"nofollow noopener\">Essential Workers, Essential Protections<\/a> initiative (the \u201cInitiative\u201d) to provide workers who have been deemed \u201cessential\u201d during the COVID-19 pandemic additional information about applicable wage and hour laws that protect them and resources for contacting the DOL. Specifically, the Initiative is designed to educate workers on the Fair Labor Standards Act (\u201cFLSA\u201d) and the Family and Medical Leave Act (\u201cFMLA\u201d). As part of the Initiative, the DOL launched an <a href=\"https:\/\/www.dol.gov\/agencies\/whd\/pandemic\" target=\"_blank\" rel=\"nofollow noopener\">Essential Protections During the COVID-19 Pandemic<\/a> website that provides links to resources on issues employers and employees may face during the COVID-19 pandemic, including on topics such as \u201cQuestions about your pay,\u201d \u201cQuestions about break time for nursing mothers,\u201d and \u201cQuestions about time off from work if you or a family member are sick.\u201d The DOL will also be hosting a series of webinars nationwide to educate worker advocates, employers, and other stakeholders answering questions that have arisen during the pandemic. The Initiative also provides updated Questions and Answers pages related to the <a href=\"https:\/\/www.dol.gov\/agencies\/whd\/flsa\/pandemic\" target=\"_blank\" rel=\"nofollow noopener\">FLSA<\/a> and the <a href=\"https:\/\/www.dol.gov\/agencies\/whd\/fmla\/pandemic\" target=\"_blank\" rel=\"nofollow noopener\">FMLA<\/a>. Our blog post on the Initiative is available here.<\/p>\n<p>September 25, 2020 Update. On September 21, 2020, the DOL provided additional guidance regarding COVID-19 and the FLSA in its <a href=\"https:\/\/www.dol.gov\/agencies\/whd\/flsa\/pandemic\" rel=\"nofollow noopener\" target=\"_blank\">Questions and Answers<\/a> document. The new guidance provides information about how hazard payments may affect overtime calculations and is incorporated in the overall summary of the Questions and Answers set forth below.<\/p>\n<p>September 17, 2020 Update. On September 16, 2020, the DOL published revisions and clarifications to its Temporary Rule (\u201cRule\u201d) implementing the provisions of the Families First Coronavirus Response Act (\u201cFFCRA\u201d). Additionally, on September\u00a011, 2020, the DOL updated its <a href=\"https:\/\/www.dol.gov\/agencies\/whd\/pandemic\/ffcra-questions\" rel=\"nofollow noopener\" target=\"_blank\">FFCRA Questions and Answers<\/a> document to reflect these changes. These revisions are in response to the United States District Court for the Southern District of New York\u2019s August ruling which vacated certain provisions of the DOL\u2019s initial temporary rule. The revised Rule: (i)\u00a0affirmed that FFCRA leave may only be taken if the employee has work from which to take leave; (ii)\u00a0affirmed that, where intermittent FFCRA leave is permitted, an employee must obtain employer approval; (iii)\u00a0revised the definition of \u201chealth care provider\u201d to be consistent with the FMLA; (iv)\u00a0clarified that an employee should provide to its employer information supporting his or her need for leave as soon as practicable; and (v)\u00a0corrected an inconsistency regarding when an employee may be required to give notice of his or her intention to take leave under the FFCRA. The revised Rule became effective upon publication. The below post has been updated to reflect these changes and our updated memorandum on the Rule is available here.<\/p>\n<p>September 4, 2020 Update. On August 27, 2020, the DOL issued guidance on the FFCRA and school reopenings. Our blog post on the guidance is available here.<\/p>\n<p>August 7, 2020 Update. On August 3, 2020, the Southern District of New York issued a decision in <em>New York<\/em> v. <em>U.S. Dep\u2019t of Labor<\/em>, No. 20-cv-3020 (S.D.N.Y. Aug.\u00a03, 2020) (Oetken, J.) that vacated certain provisions of the DOL rule implementing the provisions of the FFCRA. Specifically, the decision vacated provisions of the rule that (i)\u00a0prohibited employees from taking leave if an employer \u201cdoes not have work\u201d for the employee; (ii)\u00a0defined \u201chealth care providers\u201d; (iii)\u00a0required employer consent for taking intermittent leave; and (iv)\u00a0required employees to provide documentation related to their leave <em>prior<\/em> to taking that leave. The remaining provisions of the rule are unaffected. Notably, the Court was silent on whether its decision applies to jurisdictions other than the Southern District of New York. The content below was not impacted by the Court\u2019s decision. A more detailed discussion of the decision\u2019s impact on the rule implementing the FFCRA can be found in our client memorandum, \u201cU.S. Department of Labor Issues Regulations Implementing the Families First Coronavirus Response Act\u2019s Leave Provisions.\u201d<\/p>\n<p style=\"text-align: center;\">*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *<\/p>\n<p>On July 20, 2020, the DOL <a href=\"https:\/\/www.dol.gov\/newsroom\/releases\/whd\/whd20200720-0\" rel=\"nofollow noopener\" target=\"_blank\">provided additional guidance<\/a> in its Questions and Answers documents regarding COVID-19 and (i)\u00a0the FLSA, (ii)\u00a0the FMLA, and (iii)\u00a0the leave provisions of the FFCRA.<\/p>\n<h3>COVID-19 and the FLSA<\/h3>\n<p>The DOL provided additional guidance in its <a href=\"https:\/\/www.dol.gov\/agencies\/whd\/flsa\/pandemic\" rel=\"nofollow noopener\" target=\"_blank\">Questions and Answers<\/a> document regarding COVID-19 and the FLSA concerning telework, exempt employees under the FLSA, and hazard pay.<\/p>\n<ul>\n<li>Telework. An employer is required by the FLSA to compensate a non-exempt employee \u201cfor all hours of telework actually performed away from the primary worksite, including overtime work\u201d if the employer \u201cknew or had reason to believe the work was performed,\u201d even if the work time was unauthorized, and even if the employee did not report the work time. An employer, however, is not required to compensate a non-exempt employee \u201cfor unreported hours of telework\u201d that the employer did not know nor had reason to believe was performed.<\/li>\n<ul>\n<li><em>Time Reporting Procedures<\/em>. Generally, an employer may satisfy its obligation under the FLSA to compensate a teleworking non-exempt employee \u201cby providing reasonable time-reporting procedures and compensating that employee for all reported hours.\u201d<\/li>\n<li><em>Flexible Schedules<\/em>. An employer that allows a non-exempt employee \u201cto telework with flexible hours during the COVID-19 emergency\u201d is required to compensate that employee \u201cfor all hours actually worked,\u201d but is not required to count as hours worked \u201call time between the performance of the first and last principal activities of a workday.\u201d<\/li>\n<\/ul>\n<li>Exempt Employees. A salaried executive, administrative, or professional employee who is exempt from the FLSA\u2019s minimum wage and overtime requirements under Section 13(a)(1) \u201cmay temporarily perform nonexempt duties\u201d that are required by the COVID-19 public health emergency without losing the exemption, \u201cas long as he or she continues to be paid on a salary basis of at least $684 per week.\u201d<\/li>\n<ul>\n<li><em>Reduction in Pay<\/em>. An otherwise exempt employee will not lose his or her status as exempt if (i)\u00a0they take leave under the FFCRA, or (ii)\u00a0their employer reduces their salary during the COVID-19 pandemic or an economic shutdown, as long as they \u201cstill receive on a salary basis at least $684 per week.\u201d Any reduction in salary \u201cmust be predetermined rather than an after-the-fact deduction\u201d based on the employer\u2019s needs, and must be \u201cbona fide\u201d (that is, \u201cnot an attempt to evade the salary basis requirements and is actually because of COVID-19 or an economic slowdown,\u201d and not because of the \u201cquantity or quality of work\u201d that the employee performed).<\/li>\n<\/ul>\n<li>Hazard Pay. The FLSA does not require hazard pay during the COVID-19 pandemic; however, state or local law may require hazard pay in certain circumstances.<\/li>\n<ul>\n<li><em>Computation of Overtime Pay<\/em>. Hazard payments paid by an employer constitute compensation for employment that must be included in an employee\u2019s regular rate, and should therefore be included when calculating overtime pay. Government-provided incentive payments paid directly to employees without the employer\u2019s involvement are not compensation for employment, and therefore such payments should not be included when calculating overtime pay, unless there exists an implicit or explicit agreement between an employer and an employee to treat government-provided incentive payments as compensation for employment. An employer that merely acts as an intermediary to distribute government-provided incentive payments need not include those payments when calculating overtime pay.<\/li>\n<li><em>Implicit Agreements to Treat Government-Provided Incentive Payments as Compensation For Employment<\/em>. An implicit agreement to treat government-provided payments for work performed during the COVID-19 emergency as compensation does not exist merely because an employer permits employees to participate in the government\u2019s program. Rather, an employer\u2019s involvement in the government\u2019s incentive-payment program must amount to significantly more than serving as a pass-through vehicle. The employer\u2019s involvement in the creation, management, and payment of the government program must be so substantial that the employees legitimately understand that the employer is effectively sponsoring the government-provided incentive payments.<\/li>\n<\/ul>\n<\/ul>\n<h3>COVID-19 and the FMLA<\/h3>\n<p>The DOL also provided additional guidance in its <a href=\"https:\/\/www.dol.gov\/agencies\/whd\/fmla\/pandemic\" rel=\"nofollow noopener\" target=\"_blank\">Questions and Answers<\/a> document regarding COVID-19 and the FMLA concerning telemedicine and COVID-19 tests.<\/p>\n<ul>\n<li>Telemedicine. Until December 31, 2020, telemedicine visits\u2014that is, face-to-face examinations or treatment of patients by remote video conference\u2014will be considered \u201cin-person visits,\u201d and electronic signatures will be considered signatures, \u201cfor purposes of establishing a serious health condition under the FMLA.\u201d To qualify as an in-person visit, a telemedicine visit must: (i)\u00a0\u201cinclude an examination, evaluation, or treatment by a health care provider\u201d; (ii)\u00a0\u201cbe performed by video conference\u201d; and (iii)\u00a0\u201cbe permitted and accepted by state licensing authorities.\u201d<\/li>\n<li>COVID-19 Tests. If an employer implements a policy requiring all employees to take a COVID-19 test before returning to the office, the FMLA does not prohibit that testing requirement for an employee who was taking FMLA leave unrelated to COVID-19 at the time the employer implemented that policy. In determining whether to require COVID-19 tests for employees, employers should consider whether there are other restrictions on COVID-19 testing, including state or local guidelines or other federal guidance, such as the Americans with Disabilities Act.<\/li>\n<\/ul>\n<h3>FFCRA Leave Provisions<\/h3>\n<p>The DOL continues to update and provide additional guidance in its <a href=\"https:\/\/www.dol.gov\/agencies\/whd\/pandemic\/ffcra-questions\" rel=\"nofollow noopener\" target=\"_blank\">Questions and Answers<\/a> document. Our other posts on the guidance are available here: Part I, Part II, Part III, and Part IV. The new guidance addresses returning to work after leave, the interaction of leave entitlement and furlough, and the prohibition on retaliation for taking or attempting to take FFCRA leave.<\/p>\n<ul>\n<li>Returning to Work After Leave. Generally, an employer must restore an employee returning from FFCRA leave \u201cto the same or an equivalent position,\u201d subject to certain limited exceptions. An employer who is concerned about an employee\u2019s \u201cpotential exposure to an individual with COVID-19\u201d may \u201ctemporarily reinstate\u201d such an employee \u201cto an equivalent position requiring less interaction with co-workers\u201d or require the employee to telework. Further, an employee returning from FFCRA leave \u201cmust comply with job requirements\u201d unrelated to such leave, such as the requirement that an employee telework or take leave until testing negative for COVID-19 if that employee interacted with a COVID-infected person. An employer may not, however, require that an employee telework or be tested for COVID-19 \u201csimply because\u201d the employee took FFCRA leave.<\/li>\n<li>Interaction of Leave Entitlements and Furlough.<\/li>\n<ul>\n<li>Sick Leave. An employee who used 80 hours of paid sick leave under the FFCRA before he or she was furloughed is not entitled to any additional paid sick leave under the FFCRA after returning from furlough, as each individual is limited to 80 hours total of paid sick leave under the FFCRA. However, an employee who takes fewer than 80 hours of paid sick leave under the FFCRA is entitled to take the balance after returning from furlough, if he or she has a COVID-19 qualifying reason.<\/li>\n<li>Expanded Family and Medical Leave. An employee who used a portion of his or her 12 weeks of expanded family and medical leave under the FFCRA before he or she was furloughed is entitled to take the balance after returning from furlough, if he or she has a COVID-19 qualifying reason. The weeks an employee was furloughed \u201cdo not count as time on leave.\u201d Further, because the reason an employee needs leave may have changed during the furlough, an employer \u201cshould treat a post-furlough request\u00a0\u2026 as a new leave request,\u201d including by requiring the appropriate documentation.<\/li>\n<\/ul>\n<li>Prohibition on Retaliation. An employer may not discriminate or retaliate against an employee or prospective employee \u201cfor exercising or attempting to exercise their right\u201d to take FFCRA leave. An employer may not use an employee\u2019s request for FFCRA leave, or the employer\u2019s assumption that an employee may request FFCRA leave, \u201cas a negative factor in an employment decision, such as a decision as to which employees to recall from furlough.\u201d<\/li>\n<\/ul>\n<p style=\"text-align: center;\">*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *<\/p>\n<p>The Coronavirus situation is fluid, and laws are changing rapidly.<\/p>\n<\/p><\/div>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":"<p>May 6, 2021 Update. On April 26, 2021, the U.S. Department of Labor (\u201cDOL\u201d) announced the Essential Workers, Essential Protections initiative (the \u201cInitiative\u201d) to provide workers who have [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":10596,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[500,462,7901,4355,7873,3798,2684,3276,3919,272],"class_list":["post-10595","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-lawyers","tag-covid19","tag-department","tag-ffcra","tag-flsa","tag-fmla","tag-guidance","tag-issues","tag-labor","tag-leave","tag-u-s"],"_links":{"self":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/10595","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/comments?post=10595"}],"version-history":[{"count":0,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/10595\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media\/10596"}],"wp:attachment":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media?parent=10595"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/categories?post=10595"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/tags?post=10595"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}