New DOL Guidance on the FLSA
The Wage and Hour Division of the US Department of Labor (DOL) recently issued an opinion letter about when the Fair Labor Standards Act (FLSA) requires employees to be paid for participation in voluntary training programs
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The opinion relates to a medical facility that employs staff who must complete continuing education each year to maintain their licenses and staff who have no continuing education requirements. Employee participation in the training program at issue is completely voluntary and employees don’t perform any productive work during the training, though the training is directly related to their jobs.
According to the DOL, the most important factor in determining whether professional training is “work time” under the FLSA is whether the training occurs outside of an employee’s regular work hours, not whether the training satisfies continuing education requirements.
If, for example, employees have the opportunity to participate in the training during work hours or outside of work hours, an employee who does the training during work hours has to be paid for that time, but an employee who does the training outside of work hours doesn’t have to be paid for that time. Employers may, however, institute policies prohibiting all voluntary training during regular work hours.
Whether training satisfies continuing education requirements can be relevant to whether the training corresponds to “courses offered by independent bona fide institutions of learning.” Unless training is through an independent school or college, or corresponds to such training, the time spent on voluntary training directly related to an employee’s job must be paid, even if it is outside the employee’s regular work hours.
The full opinion letter is available on the DOL’s website (search for “training” and filter by clicking on “2020”).
EEOC Guidance on COVID-19 and the ADA
The US Equal Employment Opportunity Commission (EEOC) recently updated its guidance about COVID-19 and the Americans with Disabilities Act (ADA), which applies to private employers with 15 or more employees.
The new guidance clarifies the guidelines relating to administration of tests for current SARS-CoV-2 infection. Employers may administer such testing to employees entering the workplace consistent with current CDC guidance without violating the ADA, but employers should ensure that the tests used are considered accurate and reliable by health authorities such as the CDC and FDA.
In addition, the EEOC now makes clear that employers may legally ask all employees physically entering the workplace whether they’ve been diagnosed with or tested for COVID-19. Further, they can ask employees why they’ve been absent from work and whether they’ve traveled (even for personal reasons) to high-risk areas.
All screening is limited to those who physically enter the workplace, whether regularly or occasionally. Employers should not screen employees who work only from home, since they don’t pose a risk to other employees, customers, or vendors.
An employer that wants to ask only a particular employee to undergo COVID-19 screening must either have a reasonable belief based on objective evidence that the employee might have the disease, such as a display of COVID-19 symptoms, or be following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate.
Employers are not allowed to ask employees—even those physically coming into the workplace—whether they have family members who have COVID-19 or symptoms associated with COVID-19, but they can ask employees whether they’ve had contact with anyone diagnosed with COVID-19 or who has had symptoms associated with the disease.
An employee who refuses required screening can be barred from the workplace, but the EEOC recommends that the employer engage in discussion with an employee about the reasons for the refusal, because the employer may be able to alleviate the employee’s concerns.
The ADA does require that employers keep employees’ medical information confidential, but some information may be disclosed. The EEOC states that employers should make every effort to limit the number of people who know the employee’s identity.
The EEOC suggests using generic descriptors, like “someone on the fourth floor.” Even when an employer is so small that coworkers can easily determine who the employee is, the EEOC makes clear that the employer still cannot confirm or disclose the employee’s identity.
The employer is permitted to ask the employee for a list of people with whom the employee possibly had contact through the workplace, so that the employer can notify those who may have come into contact with the employee, without revealing the employee’s identity.
Additional guidance is available on the EEOC’s website.
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Whether you are an employee or an employer, please feel free to contact us if you have any questions about compensable time, COVID-19 requirements in the workplace, or any other employment-law issues.
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