Due to the relatively mild winters we have had here in Georgia the past two years, I have not felt the need to repost my article about the duty of agency owners to pay their employees when either they can’t come to work or the office is closed due to severe weather. However, the rapid developments over the past week or so have given rise to the same issues with respect to the Corona Virus or COVID-19 outbreak. Until Congress’ recent enactment of legislation designed to provide relief to employees who are infected by that virus or have family members who are infected, the principles that apply to employee absences or agency office closures due to severe weather also applied to those things that are the result of the Corona Virus outbreak. Those principles will continue to apply until the new law takes effect in 15 days.
As noted in my earlier article, whether an employee must be paid if they do not come to work or the office is closed depends for the most part on whether an employee is classified as an exempt or nonexempt employee for purposes of the Fair Labor Standards Act (“FLSA”). I have addressed the rules for classifying employees as exempt or nonexempt in several earlier posts on this blog, most recently in the post about the changes to the white collar exemptions from the overtime pay requirement imposed by the FLSA.
If an agency’s offices are closed for any reason, including the outbreak of a contagious disease, and a nonexempt employee does not perform any services for the agency from home, such an employee need not be paid for the time period the offices are closed. The same rule applies if the agency’s offices are open and a nonexempt employee does not come in or do any work from home. This is true regardless of whether the nonexempt employee is being paid a salary or on an hourly basis by the agency. However, if a nonexempt employee performs any work from home on a day when the agency’s offices are closed or they do not come into the office, they must be paid for the time they actually worked.
Whether an exempt employee’s salary may be reduced depends on whether the agency’s offices were open. An exempt employee’s salary may only be reduced if the agency’s offices are open, but the exempt employee does not come in due to any reason other than sickness or do any work from home. Therefore, if an exempt employee decides to stay home to take care of children who are not in school or due to a fear of contracting a contagious disease decides they just don’t want to come to the agency’s office, their next paycheck may be reduced by an amount equal to the number of full days they did not perform any services for the agency, during a time period when the agency’s offices were open for business. However, if the exempt employee performed any work from home on a day when the agency’s offices were open, they must be paid as if they worked the whole day.
If the agency’s offices were not open for business due to any reason, such as the outbreak of a contagious disease, for one or more days during a work week and an exempt employee performs any work during that workweek whether in the office or from home, they are entitled to be paid their full salary for that week. But the agency can require such an employee to use any accrued vacation or other leave time for the time when its offices were closed. If its offices are closed for the full work week and an exempt employee did not perform any work from home during that week, the agency can reduce the exempt employee’s pay for the number of days of that work week.
NEW FEDERAL LAW
The recent passage of what is known as the Emergency Family Medical Leave Expansion Act (“EFMLEA”) requires all employers with less than 500 employees to give their employees up to 10 days of paid sick leave for reasons related to the Corona Virus outbreak. This 10 days of paid sick leave is in addition to any paid sick leave an employer already provides. There are caps on the amount that has to be paid to such an employee and other provisions, which are explained in some detail here.
The EFMLEA also expands the coverage of the Family and Medical Leave Act to all employers who have employees that miss work for reasons related to the Corona Virus outbreak. Unlike the normal FMLA leave, which is unpaid, after the 10 days of paid sick leave required above is exhausted, employers are required to pay their employees who have worked for them for 30 days or more 2/3 of their regular pay up to $200 a day for up to 74 more days, or $10,000 total, whichever occurs first. Tax credits are available for the money paid to employees that can be applied to the employer’s portion of the FICA tax. The amount of those credits depends on the reason why the employee was absent from work. Exemptions for some employers from this requirement are also possible, but it is unclear at this time what the process will be to apply for those exemptions. Unless extended by Congress, the EFMLEA’s requirements will end on December 31, 2020.
IIABA has created a resource webpage that provides information to help agency owners and their employees deal with other issues created by the Corona Virus outbreak. Stay safe.