I held off as long as possible, but it seems like we are getting inundated these past few days with wage and time off questions relating to Coronavirus – COVID-19 as it moves into Minnesota. So, below is my take on the situation, and an overview of considerations for employers. As always, be sure not to discriminate against employees based on race, etc. when addressing such issues – if you make one person in a department work remotely, they should all work remotely.
Fair Labor Standards Act – Deductions From Pay & Paid Time Off
The Department of Labor (DOL) has issued a FAQ regarding COVID-19 and public health emergencies as it relates to the Fair Labor Standards Act (FLSA). It is actually a great article and I’d encourage employers to review it. In short, hourly employees get paid by the hour, so naturally, they are not due any wages for hours not worked. Employers may force the use of paid time off (PTO) or sick time and vacation, unless your Handbook or other policy specifically prohibits that. However, of course it is never that easy during a pandemic.
Employers want to keep employees happy during such a situation that is out of everyone’s control, and thus, may want to consider allowing employees to go negative PTO. What is that? That is when an employer pays an employee for time off, but once the employee returns to work, any PTO accrued is first taken applied to the PTO they took but hadn’t yet earned. Employers could also make a special policy in light of the current pandemic to allow employees to chose either unpaid time off (UPTO) or negative PTO.
Deduction from wages for absences of salaried employees is much more tricky (that could easily be its own blog). The DOL has addressed this in their FAQ (linked above). In short, as long as a salaried employee works any time in a week, you should not deduct their salary for an office closure. However, you may deduct their salary for full weeks in which they perform no work. Keep in mind that remote work (phones, iPads, etc.) is still work (and thus paid). Employees must be completely disconnected from working.
Family Medical Leave Act
The DOL has also issued a great FAQ regarding Family Medical Leave Act (FMLA) and COVID-19. Again, the best quick resource is to read that, though I’m happy you’re still reading my blog this far… In general, employers covered under FMLA need to remember to offer FMLA to employees who need leave for their own serious medical condition (which could include COVID-19 if a physician signs off on the certification – typically when there are complications from it) or to take care of their spouse, child, or parent who has a serious health condition. Some states like Wisconsin have their own FMLA policy that may offer the employee greater coverage (i.e. domestic partner and parents of spouses/domestic partners) so don’t forget to review the law of the state that the employee is located if you are a Minnesota-based employer with a national workforce.
Minneapolis Sick and Safe Time Ordinance
Employers who fall under the Minneapolis Sick and Safe Time Ordinance should remember that employees may use their earned sick and safe time (ESST) for caring for a family member during emergency closure of school or place of care. Thus, if an employee’s child’s school closes due to an infectious disease outbreak, they should be allowed to use sick and safe time for those days (as long as they have time left to use). Update – Minneapolis has now come out with its own FAQ related to ESST and COVID-19 which you can read here.
St. Paul Earned Sick and Safe Time Ordinance
The St. Paul Earned Sick and Safe Time Ordinance similarly allows for the use of ESST for caring for a family member whose school or place of care has been closed due to unexpected closure. As you may know, the St. Paul Federation of Teachers announced they were to strike effective March 10. St. Paul took the position that because the strike was noticed in advance it was not an “unexpected closure”. Thus, by that logic, St. Paul may take the position that ESST will only be applicable in a school closure situation when it is unexpected (i.e. no notice is given) versus advance notice (i.e. we will close after spring break for another week). However, I would like to think that would not happen and St. Paul will follow Duluth’s lead (read below) and encourage the use of ESST for COVID-19 absences. From an employer perspective, the use of ESST is not a bad thing as you will not have an interference claim, discrimination claim, and that liability will be off the books once used. As of March 23, 2020, St. Paul has not yet come out with a FAQ related to COVID-19 and its ESST.
Duluth Earned Sick and Safe Time Ordinance
Duluth does not have the same provision as St. Paul and Minneapolis regarding school closures. However, it has issued ESST and COVID-19 Frequently Asked Questions. Duluth has taken the position that an employer may allow an employee to use ESST for reasons not covered by the ordinance – certainly implying that an employer could allow an employee to use it for school closures related to the Coronavirus or other infectious disease pandemic.
School Closures & Other Approved Time Off
Employers who are not under the purview of a sick and safe leave ordinance may always allow employees greater flexibility than the law. In other words, employers may allow employees to use negative PTO as addressed above, they may allow the use of ESST or sick time for school closures, they may allow an approved, unpaid leave of absence, or working remotely. Employers may go above and beyond and will want to consider the health and safety of its workforce when making such decisions (i.e. temporarily stopping absenteeism points to encourage employees to stay home when ill). At the end of the day, employers should treat all employees the same, consider long-term employee retention when enacting or enforcing policies, and remember the duty to maintain a safe workplace.
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