UBP blog

12/15/2009

H1N1 and FLSA, are your sick leave policies compliant?

Filed under: HR compliance,sick leave policy — ubpblogger @ 12:50 pm
Tags: , ,

When struck with a pandemic flu outbreak, many companies will do one of the following:

  • Continue working short staffed while employees are out with the flu
  • Close their businesses for a day, or two, or several
  • Send everyone home to “telework” in an effort to stop the flu from spreading

For employers, getting hit with a pandemic flu is one thing but getting slapped with a labor law violation on top of it for noncompliant sick leave policies can make things go from bad to worse.

To ensure that your company stays compliant with the Fair Labor Standards Act while still doing as much as you can to maintain “business as usual” during a flu pandemic, employers should consider the following:

  1. Employees can do work outside of their job descriptions: When employees are out sick, employers may require healthy employees who are at work to pick up some of their ill colleagues responsibilities (even if they fall outside of the employees’ job descriptions). Just as long as the employees in question are 18 years of age or older, the FLSA places no limitations on the type of work they may be required to perform.
  2. Employees must be paid the same hourly rate, regardless of whether they work on site or from home: To control the spread of a pandemic infection, employers may require employees to work from home. If your company decides to make these requirements, you, the employer must pay all hourly workers the same rate for all hours they worked from home as you would if they had worked these hours on-site.  Also, all salaried employees must be paid their full salary for any week in which they performed any work (subject to certain exceptions).
  3. Employees who are required to work from home but cannot do not need to be paid: In the event that you shut down your workplace, thus requiring all employees to telecommute, you are only required to pay employees who are able to perform their job duties from home. The FLSA only requires employers to pay employees for hours they actually worked (whether at home or on site). That said, you should ask yourself if this will have an adverse impact on certain groups of employees. For example, if working at home requires a computer and internet access, is one group of employees much more likely to have these and thus be able to work at home? What can you as the employer do to help give equal access to the opportunity to work at home?
  4. Letting employees “volunteer” during a personnel shortage can cause you a lot of trouble: This is because the FLSA has very strict requirements governing when you can and cannot allow nonexempt employees to volunteer time. Generally, all nonexempt hourly employees working for private sector, for profit companies, must be paid at least a minimum wage for all hours they work.
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