The Department of Labor (DOL) has a continuous workday rule which provides that all time between an employee’s first and last principal activity of the day is compensable working time. With limited exceptions, such as for unpaid meal periods, employees must be compensated for the entire workday, including any periods during which they perform no work.
Historically, the continuous workday rule applied equally to telework as to work performed at an employer’s worksite or other location. However, under temporary DOL regulations implementing the Family First Coronavirus Response Act (FFCRA), the rule does not apply to a covered employer’s COVID-19 related telework arrangements.
The FFCRA entitles employees to paid leave in certain circumstances related to COVID-19, including when they are unable to work because of a federal, state, or local quarantine or isolation order. However, to avoid triggering mandatory paid leave, the FFCRA and the DOL encourage flexible work arrangements to allow employees to continue working, potentially outside of their normal schedule, while also dealing with COVID-19 related issues such as school closures, daycare closures, or because of quarantine needs.
Under these circumstances, the continuous workday rule would deter rather than encourage a flexible approach to telework. As such, the DOL’s temporary regulations implementing the FFCRA’s paid leave provisions provide that the continuous workday rule does not apply to employees teleworking for COVID-19 related reasons. This suspension expires on December 31, 2020.
Employers should note, however, that employees who telework still must record and be paid for all time worked. While an employer is not required to pay employees for unrecorded working time unless the employer knew or should have known about the work, this underscores the importance of having a telecommuting agreement/policy to set clear expectations regarding recording time, overtime, and a host of other liability concerns relating to telecommuting.
If you have any questions about this article or about drafting your own telecommuting policy, please be sure to contact an experienced labor and employment attorney.
Questions About this Topic?
If you have any questions about the content of this article or about drafting your own telecommuting policy, please contact Eckberg Lammers Labor & Employment attorney Lida Bannink at 651-351-2116, or email at firstname.lastname@example.org.