The Fair Labor Standards Act & Teleworking
According to the Department of Labor, the Fair Labor Standards Act (“FLSA”) establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in federal, state, and local governments. Telework can be defined as a work arrangement that allows an employee to perform work at an approved alternative worksite such as an employee’s residence.
Telework as a Prevention Strategy
So, what happens during a pandemic? Well, the FLSA does not prevent employers from implementing telework or other flexible work arrangements which allow employees to work from home. As such, an employer may recommend or even require employees to telework as a reasonable prevention strategy. However, employers are not allowed to discriminate against employees by singling out employees to either telework or to continue reporting to the workplace.
In addition, telework may be a reasonable accommodation. If telework is being provided as a reasonable accommodation for a qualified individual with a disability, or if required by a union or employment contract, then the employer must pay the same hourly rate or salary. Moreover, employers only have to pay employees for the hours they actually work, whether at home or at the employer’s office.
With telework comes additional business expenses such as at-home internet access, new computers, additional phone lines, or even an increased electrical bill at the employee’s home. According to the Department of Labor, employers may not require employees who are covered by the FLSA to pay or reimburse the employer for such items that are business expenses if doing so reduces the employee’s earnings below the required minimum wage or overtime compensation. Furthermore, employees will not be required to pay or reimburse their employer for such items if the telework is being provided as a reasonable accommodation, to a qualified individual with a disability, under the Americans with Disabilities Act.
Teleworking During COVID-19
If an employer is interested in starting a temporary telework policy, the employer should define which employees are eligible for teleworking, the estimated duration of the telework policy, and the responsibilities and/or tasks that will be assigned throughout the teleworking duration.
In addition, whether temporary telework is possible for a particular employer depends largely on the work performed by its employees. For example, a job that requires regular person-to-person contact with other employees, clients, or the public, cannot be removed from the office. However, if work activities can be relocated to an alternative location such as an employee’s residence, then the employer should consider offering teleworking as a reasonable prevention strategy.