Organizations are having to rethink every process and operational requirement to reopen because of the potential safety risks, and legal risks. Distancing, testing, cleaning, protective equipment, wearing of masks, training and meetings will be everyone’s focus in the coming months.
In reopening, there may be a requirement for employees who enter the workplace to have their temperature taken each morning or some other health related security screening. Because the lines were long, an employee may be late in reporting to their office. Will this time be compensable, and what will be the consequences for chronic tardiness?
In 2014, the Supreme Court ruled that employees waiting in line for security/medical checks did not constitute compensable time. The court concluded that the security checks were not an intrinsic element of the person’s work, and therefore not compensable.
Taking a person’s temperature is not necessarily the gold standard of proof. If temperature taking every morning is put into place because of some legal requirement, this time will more than likely be compensable time (check out OPM or DOL’s guidance).
Whatever policies an agency develops, it may be wise to issue it to all employees and to have them sign a copy that they have read and understand what the workplace safety policies are. This should avoid any confusions at some future point if there are any non-compliances.
Compensable Time for Sanitizing
Asking employees to sanitize desks, equipment, and other work surfaces, as well as to wash their hands periodically during the workday, is hard to determine whether this is compensable time or not. This could be considered compensable break time. What is clear is that with these present issues, which we have never had to face before, commonsense must be applied to keep the temperature level down in the workplace.
Issues for Management
In planning to reopen, here is a laundry list of issues that management is going to have to concern itself with:
- What wage-and-hour issues are there from employees, including those working remotely?
- What are some of the technology issues that may be necessary to support a remote workforce?
- Do we need all of the commercially leased workspace?
- What about failing to accommodate employees who are at a higher risk for contracting COVID-19?
- What grievances or complaints may surface from employees based on age and underlying medical issues that are causing fear to return to work?
- What consequences are there for failing to provide the correct amount of leave under the new FFCRA?
- Knowing when you must accommodate employee medical concerns (or fears of infection) – and when you can legally terminate.
- How do you accommodate working parents, and do you have to afford them any special consideration for leave, telework or flexible scheduling especially if schools remain?
- What may OSHA or the FLRA hand down to protect employees who raise safety concerns, and are there any bargaining obligations?
- What training do you need to perform for supervisors who have never managed people remotely?
This laundry list is only the beginning, and I am sure that there are many more items that are unique to your own agency’s mission.
In several of the recent government news publications, there have been a few articles saying some agencies may be facing a furlough situation before the end of the fiscal year. This has prompted a few people to contact me asking for guidance as to how a furlough affects their FMLA leave.
The Office of Personnel Management has on their website a 47-page booklet of guidance on the impact of furlough on leave and other benefits. This is what questions 6-7a say on this:
6. Does LWOP under FMLA that is scheduled to be taken during a shutdown furlough period count toward the employee’s 12-week FMLA leave entitlement?
A. No.
7. If an employee is scheduled to take paid leave or other paid time off under FMLA during a shutdown furlough, should the employee be furloughed?
A. Yes. An employee must be placed in furlough status during any paid time off scheduled to be taken during a lapse in appropriations. If an employee is scheduled to take paid time off under FMLA during a shutdown furlough (either continuously or intermittently), the paid time off must be canceled and the employee must be furloughed for any period during which paid time off was scheduled. Thus, any days of scheduled paid time off are documented as furlough days. Any previously scheduled days of unpaid leave under FMLA will continue to be documented as LWOP. No days associated with a shutdown furlough period will be counted against an employee’s 12-week FMLA leave entitlement.
7a. What should an agency do if an excepted employee faces FMLA-qualifying circumstances?
A. During a lapse of appropriations, an employee must either be working (i.e., excepted from furlough) or in a non-pay status, as referenced in Question F.7. An excepted employee may face circumstances that would normally qualify him or her for unpaid leave under FMLA. The employing agency should allow such an excepted employee to be placed in a furlough status (a form of unpaid leave) for appropriate periods, consistent with his or her rights under FMLA. The furlough periods would not count against the limit of 12 weeks of unpaid leave during any 12-month period.
What is a Furlough?
A furlough is a period of a forced time off without pay, often driven by budgetary reasons. It is intended for a temporary and limited duration whereas the person is still an employee, and it is intended that at some future point they will be recalled to duty.
During this period of absence, benefits will continue. Even though a person is in a non-paid status, they are still responsible for any co-pay premiums for health, life, dental, etc. This is also true for anyone in a LWOP status under FMLA.
During a furlough, the person does not have a work schedule. The FMLA law and 29 CFR Part 825 do not speak directly to the impact of a furlough on the FMLA entitlement, but it is most logical that a person out on FMLA when the furlough occurs will no longer have this absence counted towards their 480 hours of FMLA leave.
Keep in mind also that a furlough is a shutdown of agency operations whereas you cannot also be in a paid leave status.
Look at it another way: A college professor is out on FMLA when the spring term ends, and the summer begins. Their time away from teaching duties during this summertime does not detract from their basic entitlement.
When the fall term begins, and if this person is not well enough to return to teaching, then whatever residual time left to their 480-hour entitlement will pick up from there. Their FMLA entitlement cannot be exhausted when they are in a non-duty status. For these reasons, the policy stated above in the OPM Furlough Guidance booklet is absolutely correct.
Impact of COVID-19 Coronavirus on the Federal Workplace
The impact of COVID-19 has impacted the workforce in ways that we have not seen before and may take years to sort out.
Telework
As more agencies are planning to open up and looking to maximize telework, it behooves agencies to review their telework agreements to ensure thy are compliant with the Fair Labor Standards Act (FLSA).
Telework agreements should clearly contain a provision that a person working remotely from home cannot work overtime without prior approval in writing from their supervisor.
Overtime Pay
If a non-exempt employee works additional hours that were not approved in advance, can the employer deny them overtime pay? The short answer is no. They need to be counseled with regard to the policy on advanced approval, and if there are repeated instances where the person failed to obtain approval in advance, then the person may be disciplined for failure to follow supervisory directions.
Locality Pay
Also, agencies must be mindful that if a person’s remote worksite is outside the geographical area of their permanent duty station (PDS) and locality pay area, this will necessitate a reassignment to the locality pay area where their remote site is located. In order to continue to receive the salary of their PDS locality pay area, they must report for duty to that area at least 20 percent of the time under OPM’s pay policies.
Exempt/Non-Exempt Considerations
Regulations defining who is exempt or nonexempt have not changed. However, because the workplace may be restricted to the number of employees who may work in the office at one time, there may be a tendency to have an employee who is exempt perform tasks that were previously completed by nonexempt employees.
Now, if this employee is performing these duties 20 percent or more of their time, this may dilute their time from performing their primary duties, so their status could change to now become a nonexempt employee, and they therefore could be entitled to overtime pay if their total hours exceeds 40 hours in the workweek.
Conclusion
These issues will require careful planning to return employees to work at their duty stations. According to the medical community, COVID 19 is expected to be with us for years. Indeed, patience and working together is needed to come up with commonsense solutions. In the immortal words of actress Betty Davis, “fasten your seatbelts, this is going to be a bumpy ride.”
