FLSA Implications When Telecommuting Due to Illness

Q: I received an email from an employee stating that he is sick, but will be working from home.  Should I allow my employee to work remotely while sick?  What are the FLSA implications of allowing an employee to work from home while sick?

A: The practice of working remotely or telecommunicating has become increasingly popular given technological advancements like smart phones, videoconferencing, and instant messaging services.  While telecommuting provides several benefits for employers and employees, it can also create new challenges such as when employees opt to work from home while sick.

The Fair Labor Standards Act (FLSA), requires employers to pay employees for all time spent completing productive work, regardless if the employer knew that the work was being performed. Although this rule applies to both exempt and non-exempt employees, an employee’s exempt status determines how one’s payment will be calculated when he or she is working from home while sick.

If an exempt employee works remotely while sick, then the employer must pay the employee for a whole day of work, even if the employee only works for an hour or two. However, if a non-exempt employee works from home while sick, then the employer is only required to pay the employee for the actual amount of time worked.  Thus, under the FLSA, even if an employer prohibits employees from working from home while sick, employees must be paid for any productive work they complete.

Whether a company should allow its employees to work remotely while sick depends on a number of factors, including but not limited to the extent of the employee’s sickness and the nature of the employee’s work. For example, working from home with a sprained ankle is different from working with the flu.  Moreover, certain jobs do not lend themselves to working from home, such as face-to-face customer service, working a cash register, working at a food establishment or a construction site.

If an employer decides to allow employees to work from home when they are sick, it is recommended that the employer create and implement a remote work sick policy. This policy should discuss when a sick employee can work from home, which positions the policy applies to, the types of assignments that can be worked on (i.e. responding to emails, or participating in conference calls), and how employees should track their time.  It is also recommended that the employer include language in the policy that gives it the discretion to limit an employee’s ability to work from home if the employee submits subpar work.  If an illness turns into a qualified disability under the ADA, the employer would need to engage in the interactive process to determine whether a telecommuting arrangement would be a reasonable accommodation.  For more information on telecommuting as a reasonable accommodation, see our blog post here.

For assistance drafting a remote work sick policy, contact a labor and employment attorney.

Renee C. Manson


Circuit Split on Sexual Orientation Discrimination Continues With New Second Circuit Opinion

Q.  Is sexual orientation a protected category under federal discrimination laws?

A.  It depends on what Circuit you are located in.  On February 26, the U.S. Court of Appeals for the Second Circuit (which exercises federal jurisdiction in Connecticut, New York, and Vermont), joined the Seventh Circuit (with jurisdiction over Illinois, Indiana and Wisconsin) in holding that sexual orientation discrimination is prohibited by Title VII of the Civil Rights Act of 1964.  Now there are two circuit court decisions ruling that sexual orientation is protected under Title VII.  These decisions conflict with at least one decision, of the Eleventh Circuit (with jurisdiction over Alabama, Florida and Georgia).

Many states and some cities and other municipalities have enacted laws that expressly and directly prohibit sexual orientation discrimination. There is, however, no federal law that directly outlaws this type of discrimination.  While we continue to wait for  Congress to act or the Supreme Court to take up a case for review, employers should consider treating sexual orientation as a protected class when making employment decisions and drafting employment policies.

For more details on this issue, click here.

Susan K. Lessack


Maryland Paid Sick Leave Law Now In Effect

Q: I have employees working in Maryland. What do I need to know and do in order to comply with Maryland’s new paid sick leave law?

 A: The Maryland Healthy Working Family Act (the “Act”) went into effect on February 11, 2018. In short, the Act requires employers with 15 or more employees working in Maryland to provide paid sick and “safe” leave for qualified employees. Employees eligible for paid leave are entitled to be paid at the same rate the employee normally earns. Employers with 14 or fewer employees are required to provide unpaid sick and safe leave. All covered employers with employees whose primary work location is in Maryland are required to provide earned leave, regardless of where the employer is located.

Employees may use earned “sick and safe” leave to treat their own mental or physical injury, illness, or condition; to obtain preventive medical care for themselves or their family member; to care for a family member’s physical injury, illness, or condition; for maternity or paternity leave; or if the absence from work is necessary due to domestic violence, sexual assault, or stalking committed against the employee or the employee’s family member, and the leave is being used by the employee or employee’s family member to obtain certain services offered to victims of domestic violence, sexual assault, or stalking.

Under the Act, employees are able to accrue one hour of leave for every 30 hours that an employee works. An employee is entitled to accrue up to 40 hours of sick and safe leave in a year, regardless of the number of hours worked. Rather than awarding leave as it accrues throughout the year, an employer is permitted to “frontload” and award the full 40 hours of earned sick and safe leave that the employee would earn over the course of the year at the beginning of the year. Further, an employee is entitled to carry over earned but unused sick and safe leave from one year to the next, up to a maximum of 64 total hours. Of course, employers may allow employees to accrue more than 40 hours of leave in a year. There is no requirement for an employer to compensate employees for unused earned sick and safe leave when an employee leaves the employer’s employment.

Not all employees are covered under the Act. For example, employees working less than 12 hours a week and individuals under the age of 18 are exempt from the Act. There is also a carve-out for construction industry employees if an employee is covered by a bona fide collective bargaining agreement in which the requirements of the Act are clearly and expressly waived.

Employers are not required to modify existing paid leave policies if the existing policy allows employees to accrue and use leave under terms and conditions that are equal to the leave provided for under the Act. Employers also are required to provide notice of the Act’s requirements by posting information about the new law. Employers can meet this requirement by posting the Employee Notice found here. Additionally, employers may still require employees using sick and safe leave to comply with the employer’s regular notice and procedural requirements.

The Maryland Healthy Working Family Act is a complex law with multiple facets, including recordkeeping and tracking requirements. For further information regarding the Maryland Healthy Working Family Act or for assistance in developing policies compliant with Maryland law, contact any member of the Pepper Hamilton labor and employment team.

Lee E. Tankle


NLRB Flip Flops on Browning Ferris Standard for Joint Employment (Again)

Q.  What is the standard for determining whether two companies are joint employers?

A.  On February 26, the National Labor Relations Board (NLRB) decided unanimously to vacate its decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017) (vacated at 366 NLRB No. 26).  As we reported previously, in December 2017, the NLRB issued a 3-2 decision in Hy-Brand, in which it overruled the controversial joint-employer standard articulated in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015). The Browning-Ferris decision had significantly relaxed the standard for proving that two entities are joint employers, ruling that entities could be joint employers even if one had only indirect control or the unexercised right to control employees’ terms and conditions of employment. The Hy-Brand decision returned to the pre-Browning-Ferris standard for finding joint-employer status, under which entities are joint employers only if each has exercised direct and immediate control over employees.

With this latest development, at least for now, the Browning-Ferris standard is in effect again, making it much easier for employees and unions to establish that two companies are joint employers.

For more information about this topic, please click here.

Susan K. Lessack

Reducing Cybersecurity Threats from Employee Conduct

Q.  What can my company do to reduce the threat that one of our employees may cause a cyberattack?

A.  In September 2017, Equifax announced that hackers had gained access to the confidential information of more than 145 million consumers, almost half of the U.S. population.  Recent cases suggest that employers could be subject to liability when one of their employees causes a data breach by either knowingly or negligently revealing sensitive employee or customer data. In March 2016, for example, Snapchat announced that someone posing as the company’s chief executive officer obtained employee payroll data about 700 employees. More than seven other companies were tricked by similar phishing attacks that same year.

Companies often are surprised to learn that their biggest security threats come from their own employees. These risks range from the use of weak passwords to clicking on corrupt internet links to theft of sensitive data. The risk a cyberattack also extends to mobile devices accessed from employees’ homes.

There are several things that employers can do to tighten controls on their data.  For more information on how to tighten employee security, read here.

–Tracey E. Diamond