Hazard Pay & DOL updates
Employers maybe wondering whether they should be paying hazard pay especially when requiring employees to come back to work during the COVID-19 Pandemic. Hazard pay is sometimes paid to an employee when the employee is asked to perform hazardous duties or perform work in a hazardous location. Often referenced to as Hazard Duty Pay (HDP), HDP is generally paid in addition as a supplement to the employee base pay. In recent guidance by the Department of Labor, the DOL clarified that this would not be a requirement under federal wage and hour laws. Instead employers may want to look to private agreements between them and the employees, non-federal wage law or any other applicable agreements to determine if hazard pay would be owed.
In answering whether employees who are exempt from the FLSA overtime requirements under the executive, administrative and professional exemptions perform other non-exempt duties during the coronavirus crisis will continue to be treated as exempt, the DOL stated that yes during the COVID-19 public health emergency these exempt employees may temporarily perform non-exempt duties required by emergency and not lose that exemption status.
The Department of Labor also discussed furlough and how to handle those issues when you have furloughed a workforce and they are coming back with the potential or actual need to take FFCRA leave,
95. I was working full time for my employer and used two weeks (80 hours) of paid sick leave under the FFCRA before I was furloughed. My employer said I could go back to work next week. Can I use paid sick leave under the FFCRA again after I go back to work?
No. Employees are limited to a total of 80 hours of paid sick leave under the FFCRA. If you had taken fewer than 80 hours of paid sick leave before the furlough, you would be entitled to use the remaining hours after the furlough if you had a qualifying reason to do so.
96. I have an employee who used four weeks of expanded family and medical leave before she was furloughed. Now I am re-opening my business. When my employee comes back to work, if she still needs to care for her child because her child care provider is unavailable for COVID-related reasons, how much expanded family and medical leave does she have available?
Under the FFCRA, your employee is entitled to up to 12 weeks of expanded family and medical leave. She used four weeks of that leave before she was furloughed, and the weeks that she was furloughed do not count as time on leave. When she returns from furlough, she will be eligible for eight additional weeks of leave if she has a qualifying reason to take it.
Because the reason your employee needs leave may have changed during the furlough, you should treat a post-furlough request for expanded family and medical leave as a new leave request and have her give you the appropriate documentation related to the reason she currently needs leave. For example, before the furlough, she may have needed leave because her child’s school was closed, but she might need it now because her child’s summer camp is closed due to COVID-19-related reasons.
97. My business was closed due to my state’s COVID-19 quarantine order. I furloughed all my employees. The quarantine order was lifted and I am returning employees to work. Can I extend my former employee’s furlough because he would need to take FFCRA leave to care for his child if he is called back to work?
No. Employers may not discriminate or retaliate against employees (or prospective employees) for exercising or attempting to exercise their right to take leave under the FFCRA. If your employee’s need to care for his child qualifies for FFCRA leave, whether paid sick leave or expanded family and medical leave, he has a right to take that leave until he has used all of it. You may not use his request for leave (or your assumption that he would make such a request) as a negative factor in an employment decision, such as a decision as to which employees to recall from furlough.
Check out the DOL website and the link to some of the Q&A here.