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Even as stay-at-home and isolation orders are slowly lifted, employers will continue to have employees teleworking due to the COVID-19 / coronavirus pandemic.

As a general rule:

• Employees who are teleworking must record—and be compensated for—all hours actually worked, including overtime, in accordance with the requirements of the Fair Labor Standards Act (the “FLSA”); BUT 

• The Department of Labor’s continuous workday guidance generally presumes that all time between performance of the first and last principal activities in a day is compensable work time. See 29 C.F.R. § 790.6(a) (the “Continuous Workday Rule”).

The DOL, however, has determined that the Continuous Workday Rule is inconsistent with the objectives of the Families First Coronavirus Response Act (the “FFCRA”) and the CARES Act with respect to employees required to telework due to COVID-19, whether the telework is required to comply with social distancing, to care for a child whose school is closed or any other reason precipitated by COVID-19. 

According to the DOL, applying the Continuous Workday Rule to employees who are teleworking for COVID-19 related reasons would disincentivize and undermine the flexibility in teleworking arrangements that are critical to the FFCRA framework Congress created within the broader national response to COVID-19.

As a result, from now until December 31, 2020, an employer with less than 500 full and part-time employees is not required to count as hours worked all time between the first and last principal activity performed by an employee teleworking for COVID-19 related reasons. 

As explained by the DOL:

• An employee may agree with an employer to perform telework for COVID-19 related reasons on an alternate schedule, such as: 7-9 a.m., 12:30-3 p.m., and 7-9 p.m. on weekdays. 

• This allows an employee, for example, to help teach children whose school is closed or assist the employee's parents who are temporarily living with the family, reserving work times when there are fewer distractions. 

• The employer must still compensate the employee for all hours actually worked—7.5 hours—that day, but not all 14 hours between the employee's first principal activity at 7 a.m. and last at 9 p.m. must be compensated (with certain break times excepted), as may be the case for other teleworking employees or non-teleworking employees.

Please take note that the DOL guidance does not supersede more restrictive state law continuous workday rules that may exist in states where you do business. If such rules exist in your state(s), they must still be followed absent similar action by your state(s).

For additional information, please contact Adam D. Fuller, adfuller@bmdllc.com or 330.374.6737, or any member of the L+E Team at BMD.