How to Compensate Your Employees During a Virus Outbreak
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In light of the coronavirus outbreak, many employers are taking steps to attempt to reduce the likelihood of transmission of the virus to their workforce. Some are considering requiring their employees to work from home; to work reduced hours; to take on additional duties or to not work altogether. Many of the most likely responses may implicate the provisions of the Fair Labor Standards Act’s (FLSA).
If you temporarily close your operations, do you still have to pay your exempt employees their full salary? Generally Yes, if the employees work any part of the workweek they are entitled to their full salary. I say “generally” because there are exceptions to this general truism related to FMLA-qualified leave, personal leave of a full day or more and sick leave of a full day or more. If an exempt employee is held out of work for an entire workweek, the FLSA does not require that they are paid.
Do you have to pay an exempt employee who misses less than a full workweek because of her own illness or that of a family member her full salary?
As a general rule, if an exempt employee misses a full day of work, you do not have to pay them for that day. However, if the employee misses less than a full day you cannot dock their salary. The primary exception to this “no partial day docking” rule is found in the Family and Medical Leave Act (FMLA). If you and the employee and the reason for the leave qualify under the FMLA, you can apply a partial-day docking of their wages without losing the employee’s exempt status.
Do I risk losing the exempt status for my exempt employees if I require them to perform non-exempt duties during a virus outbreak?
Probably not. As a general rule, an exempt employee will not lose her exempt status by performing nonexempt work because of the existence of an emergency. Thus, when emergencies arise that threaten the safety of employees, a cessation of operations or serious damage to the employer's property, any work performed in an effort to prevent such results is considered exempt work. However, an “emergency” does not include occurrences that are not beyond control or for which the employer can reasonably provide in the normal course of business. Emergencies generally occur only rarely and are events that the employer cannot reasonably anticipate.
Can I require my exempt and non-exempt employees to work longer hours in order to make up for absent co-workers?
Unless you are a party to a collective bargaining agreement or are in a handful of regulated industries, the answer is “yes” you can require your employees to work longer hours. The FLSA does not limit the number of hours that an employee over sixteen years of age may work. Please note that many states and local governments impose their own limits on the number of hours that an employee may be required to work.
Do you have to pay a non-exempt employee for their regular schedule if you force them to stay home or to work a reduced schedule? As a general rule, No. You are only required to pay non-exempt employees for their time spent working.
Can you pay non-exempt employees two different hourly rates of pay if they perform additional duties during a virus outbreak?
Yes, you can pay an employee different hourly rates of pay for performing different duties. However, when an employee in a single workweek works at two or more different types of work for which different hourly rates of pay have been established, his or her regular rate for that week is the weighted average of those rates.
However, if you meet certain conditions, the regulations allow you to pay an employee overtime compensation at one and one-half times a different hourly rate than the employee’s regular hourly rate. Generally, you must satisfy the following four requirements.
1. the employee must perform two or more kinds of work;
2. the employer must establish a bona fide different hourly rate for those different kinds of work;
3. the compensation must be paid pursuant to an agreement or understanding arrived at between the employer and the employee in advance of the performance of the work; and
4. the compensation must be computed at rates not less than one and one-half times such rates applicable to the same work when performed during non-overtime hours.