Tracking Teleworking Hours and FFCRA Leave Eligibility

U.S. Department of Labor’s Wage and Hour Division (WHD) Guidance Reminds Employers to Track Teleworking Employee Hours

With telework arrangements increasing in response to coronavirus, the WHD has issued guidance to clarify an employer’s obligation to track the number of hours of compensable work performed by employees who are teleworking or otherwise working away from premises controlled by their employers.

In a telework or remote work arrangement, the question of the employer’s obligation to track hours actually worked for which the employee was not scheduled may often arise.  The new guidance reaffirms that an employer is required to pay its employees for all hours worked, including work not requested but allowed and worked performed at home.  If the employer knows or has reason to believe than an employee is performing work, the time must be counted as hours worked.  An employer may show reasonable diligence in tracking employee hours by providing a reasonable reporting procedure for non-scheduled time.  

With students returning to school, the Department of Labor has released three new FAQ’s that offer guidance on how leave should be administered under the Families First Coronavirus Response Act (FFCRA)

The new FAQ’s address employee eligibility for expanded family and medical leave and paid sick leave when: 

• A child attends a school operating on an alternate-day basis;
• A parent chooses remote learning when in-person instruction is available; and
• A school begins the year with remote learning but may shift to in-person instruction if conditions change.

Newly Issued FAQ’s:

98.  My child’s school is operating on an alternate day (or other hybrid-attendance) basis. The school is open each day, but students alternate between days attending school in person and days participating in remote learning. They are permitted to attend school only on their allotted in-person attendance days. May I take paid leave under the FFCRA in these circumstances?

Yes, you are eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to your child on days that he or she cannot attend in person. You may take paid leave under the FFCRA on each of your child’s remote-learning days.

99.  My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances? 

No, you are not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID–19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If your child is home not because his or her school is closed, but because you have chosen for the child to remain home, you are not entitled to FFCRA paid leave. However, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her. See FAQ 63.

Also, as explained more fully in FAQ 98, if your child’s school is operating on an alternate day (or other hybrid-attendance) basis, you may be eligible to take paid leave under the FFCRA on each of your child’s remote-learning days because the school is effectively “closed” to your child on those days.

100.  My child’s school is beginning the school year under a remote learning program out of concern for COVID-19, but has announced it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year. May I take paid leave under the FFCRA in these circumstances?

Yes, you are eligible to take paid leave under the FFCRA while your child’s school remains closed. If your child’s school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations. See FAQ 98 and 99.

We hope you find this information useful. 
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