The Doctor Will See You Now via Telemedicine and It May Qualify as Treatment under the FMLAAs you already know, COVID-19 changed almost everything, and some of those things are likely here to stay (or at least for a while longer). One widespread change is the use of videoconferencing, including in the medical field. An increase in the use of videoconferences to treat patients (aka telemedicine or telehealth) and efforts to respond to the COVID-19 pandemic led the U.S. Department of Labor (DOL’s recent guidance can be found here) to extend the consideration of telemedicine as in-person treatment indefinitely (or at least until the DOL issues further guidance).

What Does This Mean?

When evaluating FMLA certification documents, employers must keep in mind that a telemedicine visit may qualify as a healthcare provider visit to support FMLA leave. Eligible employees who work for covered employers are entitled for leave to, among other things, care for family members with serious health conditions or for their own serious health conditions. Caring for family members or one’s self includes seeking “continuing medical treatment by a health care provider.” Under FMLA regulations, treatment is defined as an “in-person visit to a health care provider.”  With the recent guidance, videoconferences now qualify as an in-person visit so long as the videoconference:

  1. Includes an examination, evaluation, or treatment by a healthcare provider;
  2. Is permitted by state licensing authorities; and
  3. Is performed by videoconference (phone calls, letters, emails, or text messages alone won’t cut it).

Accordingly, an eligible employee who tells you that the doctor’s visit was via videoconference should be granted FMLA leave (so long as the above-mentioned criteria is met).  But, keep in mind that telephone calls without video, letters, emails, and text messages alone are not considered treatment under the FMLA. When evaluating certification documents, keep this change in mind and, as always, contact your employment counsel with any questions.

And Don’t Forget the Milk and Bread – Paying Employees in Weather EmergenciesWhen everyone’s phone issues that long beep indicating a hazardous weather warning, you know that weather could possibly affect your workplace. With blizzard season (or, in the South, snow flurry season) underway, we have updated this previously published group of tips on how to deal with extreme weather. 

Hurricanes, Blizzards, and That Dreaded TORCON Index

At the beginning of another storm season, we have been receiving questions across our offices about how to handle pay for company closings, late openings, and “y’all go home.” Here are some things to consider:

1. Hourly Employees

Pay for hourly employees during weather disasters is fairly simple. Hourly employees must be paid for all hours actually worked. If employees do not come in, are turned away at the door, or are sent home early, the rule is the same – pay hourly employees for hours actually worked.

In this age of remote login, PDAs, and perhaps just running business-related errands while the office is closed, however, employers must beware. Hourly employees must be paid for all time actually worked. This includes time working away from the company’s time clock or login procedure.

Employers are not required to pay “show-up” pay under most state laws, including the southern states. Some northeastern and western states do have show-up pay requirements contained in their state laws. If your business is operating there, you should check state laws for those requirements and any exceptions to them, such as one that results from timely and effective notice of a closing by the company.

2. Salaried Employees

Salaried employees, to retain their overtime exemption, must be paid their full salary in any week in which they perform any work. Thus, a closure for that approaching stormfront will not allow an employer to deduct any percentage of a salaried employee’s pay for the hours not worked.

There basically are three exceptions for inclement weather to this rule for salaried employees. First, if the employee has a paid time-off (PTO) plan, the employer may require the employee to use some of his or her PTO time for a weather-related closure. In this instance, the salaried employee obviously continues to receive full pay (but some of it comes from the PTO bank). The second exception is that an employee need not be paid his or her salary in any workweek in which no work is performed. This exception would apply to the more severe Katrina-like disasters. So, if the office is closed the entire week, you do not have to pay even your exempt employees who performed no work. Finally, employers may deduct for full-day absences, but only full-day absences, if the business is open and the employee is unable to get to work due to the weather (this would be like an unpaid personal day for something other than sickness or disability).

3. Contractual Pay

In addition to considering federal and state wage-and-hour laws, do not forget about contractual requirements that could impose greater obligations on the company than do these laws. Individual employment contracts could contain such provisions, as could collective bargaining agreements (CBAs) in union settings. CBAs, for example, often contain show-up pay provisions and have restrictions on mandatory use of PTO.

4. Working from Home

As mentioned above, all employees, hourly and salaried, must be paid for all time worked. This includes time worked from home or any other “offsite” location. Employees with PDAs (and old-fashioned toolboxes) must be monitored for actual work performed when the employer’s business otherwise is closed. For remote employees (i.e., those still working from home during the pandemic), the analysis is the same.  If an hourly employee’s power goes out and he or she is unable to work, the employer doesn’t have to pay for time that the employee hasn’t worked. On the other hand, a salaried remote employee who loses power for several days and is unable to work must be paid his or her entire salary — unless that stretches on for longer than a week, as noted above.

5. What to Do with the Superstar Who Came in Every Day

Bonuses are allowed but not required. Gift cards and spa treatments are great alternatives. Just remember, though, that for the purpose of calculating overtime pay in a given workweek, all remuneration must be included in the base rate before multiplying that rate by time and a half for hours worked over 40.

This article was originally published on the Labor & Employment Insights blog on March 12, 2015.

Who’s the Boss? U.S. DOL Issues Final Rule on Independent Contractor StatusEmployers often ask, “Can this worker be an independent contractor?” The answer is often unclear due to the different tests for employee versus independent contractor status, which vary between federal circuit courts and from state to state. In the end, the answer typically depends on how much risk the employer is willing to take. In an effort to simplify the answer, the U.S. Department of Labor (DOL) announced on January 6, 2021, a final rule pertaining to employee versus independent contractor status under the Fair Labor Standards Act (FLSA). The rule is scheduled to take effect on March 8, 2021.

DOL’s Intent

With the rule, the DOL intends to address a critical issue for many workers and employers, particularly in the growing “gig” economy. According to Eugene Scalia, the current Secretary of Labor, issuance of the rule was driven in part by the passage of laws such as California’s AB-5, which requires many businesses to change worker classifications and identify workers as employees rather than independent contractors.

According to Secretary Scalia, the rule provides:

“guidance, clarifying and harmonizing principles courts have used for decades to determine who is an ‘employee’ under the FLSA. The rule asks whether a worker depends on a business or organization for the opportunity to work, or if instead she’s essentially in business for herself. If the former, she’s an employee; if the latter, an independent contractor.”

In essence, the final rule focuses on “who is the boss” by “reaffirm[ing] an ‘economic reality’ test [adopted by many federal courts] to determine whether an individual is in business for him or herself (independent contractor) or is economically dependent on a potential employer for work (FLSA employee).”

The Core Factors

The rule provides two “core factors” that are key to determining whether a worker is economically dependent” or “in business for him or herself”:

  • The nature and degree of control over the work.
  • The worker’s opportunity for profit or loss based on initiative and/or investment.

Drawing from factors in court decisions and prior guidance, the DOL’s rule identifies three other factors that may be used when analyzing a worker’s status.  They are:

  1. The amount of skill required for the work;
  2. The degree of permanence of the working relationship between the worker and the potential employer; and
  3. Whether the work is part of an integrated unit of production.

The rule provides examples of the factors in application and will be published in the Federal Register on January 7, 2021.

Whether this rule survives the new administration is yet to be seen.