What’s worse than having a bunch of employees out sick with the pandemic flu? Getting hit with a labor-law violation because of your “flexible” policies that accommodate sick employees.

Here’s where good companies run into trouble. They –

• Work short-handed while employees are out sick

• Shut their doors because viruses like H1N1 prevent people coming to work, or

• Send everyone home to telework in an attempt to prevent illnesses from spreading.

Whatever plans your company makes to continue operations could inadvertently cause it to run afoul of the Fair Labor Standards Act. To ensure you remain in compliance, follow the U.S. Department of Labor guidelines:

1. Employers aren’t obligated to pay hourly workers who put in a partial week when the business is closed. The FLSA generally applies to hours actually worked – and it doesn’t require employers who are unable to provide work to nonexempt employees to pay them for hours people would’ve otherwise worked.

2. People can do work that’s outside their job descriptions. It’s OK to require those reporting for duty to pick up some of their ill colleagues’ responsibilities. The FLSA doesn’t limit the types of work employees age 18 and older may be required to perform. That’s true even if the work isn’t listed on the employee’s job description.

3. Companies may require employees to telework as an infection-control strategy when there are pandemic conditions. Telework may also be a reasonable accommodation. Just be careful HR doesn’t single out employees to either telework or continue reporting to the workplace for reasons prohibited by any of the EEOC rules. Remember, too, that workers must be paid their same hourly rate or salary if they work from home. Under the FLSA, employers generally have to pay people only for the hours they actually work, whether at home or at the worksite. However, the FLSA requires employers to pay nonexempt workers at least the minimum wage for all hours worked, and at least time and one-half the regular rate of pay for hours worked in excess of 40 in a workweek. Salaried exempt employees generally must receive their full salary in any week in which they perform any work, subject to certain exceptions.

4. Employees who are required to work from home (because the workplace has shut down) but can’t, don’t have to be paid. The FLSA only requires employers to pay people for the hours they actually work, whether they’re at home or the worksite – that’s minimum wage (or more) for nonexempt employees. Salaried exempt employees must be paid their full salary in any week in which they perform any work, but for a few exceptions. Note: DOL encourages employers to consider additional options to promote “social distancing,” such as adding staggered work shifts.

5. Letting employees “volunteer” to help out during a personnel shortage could cause trouble. While that’s a nice gesture, the FLSA has stringent requirements on when you can and can’t allow people to volunteer time. Generally, covered, nonexempt employees working for private, for-profit employers have to be paid at least the minimum wage, and can’t volunteer their services. Check with the Department of Labor for the rules when volunteering in the public and private, nonprofit private sectors may be allowed.

Different approach from the government
New proposed legislation would allow the sick to stay home on the employer’s dime (which, admittedly, could also prevent the spread of illness). Here are specifics from two bills under consideration by Congress, each of which would add a layer of worker protection:

- HR 3991, Emergency Influenza Containment Act – Legislation introduced by Rep. George Miller (D-CA) would guarantee five paid sick days for anyone sent home or told to stay home by their employer because they have a contagious disease (e.g., H1N1 virus). It also protects those taking advantage of the sick time from being fired, disciplined or retaliated against for their decision. Anyone needing more than the five sick days could continue staying home under the Family and Medical Leave Act, if applicable. The legislation would apply to employers with 15 or more employees that currently don’t provide at least five days of sick leave.

- SB 1152, The Healthy Families Act – This bill would require employers with more than 15 employees to give anyone putting in more than 20 workweeks annually up to seven days of paid sick days each year. The time could be used for their own or a family member’s illness, or for preventative care such as a doctor’s office visit. Other versions of this bill, which was introduced earlier this year by Rep. Rosa DeLauro (D-CT) and Sen. Edward Kennedy (D-MA), made the rounds in 2005 and 2007.

Tags: fair labor standards act, Family and Medical Leave Act, FLSA, h1n1