The anticipated spread of coronavirus in the U.S. has many employers revisiting their emergency response plans. Depending on guidance from public health officials, some employees may be directed to work from home, temporarily furloughed, or work a reduced schedule. Some managers and executives may be pressed into service to perform more manual or routine tasks.

To paraphrase a favorite sign in my office, this is not the Department of Labor’s first rodeo, and there is existing guidance under the Fair Labor Standards Act’s (FLSA) implementing regulations on how employees must be compensated in these situations. Let’s look at some of the wage/hour issues presented when a business must alter its operations due to a public health emergency.

Must non-exempt employees whose work schedule is reduced due to a temporary closure be paid their regular schedule?

No, not under the FLSA at least. The FLSA sets no minimum hours requirement, only requirements with respect to how much hourly and salaried non-exempt employees must be paid for the hours they do work. State and local law and collective bargaining agreements may have their own minimum hours or “show up pay” requirements, however.

Must exempt employees like executives and supervisors be paid if they do not work due to a temporary closure?

As long as the executive, supervisor, or other exempt employee works part of the week, they must be paid for the entire workweek.  However, if an executive, supervisor, or other exempt employee is completely relieved of duty during the temporary closure, the employer can elect not to pay them for that workweek.

Must exempt employees be paid if they miss work due to illness or personal circumstances related to a disease outbreak?

If an exempt employee misses a full day of work for personal reasons, the FLSA permits the employer to deduct a full day of pay from the employee’s salary. If an employee is absent for a full day due to personal illness, an employer can deduct from the employee’s salary if it has a policy providing for paid sick leave. Generally, any deductions must be in full-day increments. The exception is FMLA leave—if an employee is absent for part of a workday and the absence counts as FMLA leave, the employer can deduct from the employee’s salary in partial-day increments. Finally, unless otherwise provided by state or local law, employer policy or contract, employers can generally require employees to use available paid leave such as vacation or sick leave to cover even partial-day absences.

Is there a limit on the number of hours per day or week that an employee can be required to work in the event of an emergency?

Again, the answer is no, not under the FLSA, so long as the employee is at least 16 years old.  State and local law may place limits on scheduling, however. In Illinois, non-exempt employees generally cannot be required to work more than six consecutive days. There is a specific exception for employees who are “needed in case of breakdown of machinery or equipment or other emergency requiring the immediate services of experienced and competent labor to prevent injury to person, damage to property, or suspension of necessary operation”.  Consult with legal counsel to vet these scenarios.

What happens if an executive, supervisor, or other exempt employee is called upon to perform non-exempt work to keep the business running?

An exempt employee does not become non-exempt when they must perform non-exempt work because of an emergency.  Note, however, that emergencies do not include events that are within the employer’s control and those that can be addressed in the normal course of business. Instead, emergencies occur rarely and include those events that cannot be reasonably anticipated. They may include, amongst other things, threats to employee safety, a cessation of operations, or serious damage to the employer’s property.

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Photo of Tracey Truesdale Tracey Truesdale

Tracey Truesdale is a partner and co-chair of the Labor & Employment Law Practice Group at Franczek P.C. She has represented management in labor and employment for more than 25 years. She represents both national Fortune 50 corporations and smaller companies, with clients…

Tracey Truesdale is a partner and co-chair of the Labor & Employment Law Practice Group at Franczek P.C. She has represented management in labor and employment for more than 25 years. She represents both national Fortune 50 corporations and smaller companies, with clients in the professional services, manufacturing, construction, and technology industries.

Tracey has significant experience advising and defending employers on OSHA matters, including post-accident advice and representation of employers in employee fatality and catastrophe investigations, representing employers in negotiations with federal OSHA over OSHA citations and penalties, litigating OSHA complaints before the Occupational Safety and Health Review Commission, and investigating, defending, and litigating employee claims of retaliation under the OSH Act.

Tracey’s employment law practice includes strategic advice to clients in force reduction and other business scenarios; preventive counseling on matters of employee discipline, discharge, and leave issues including FMLA, ADA, Chicago and Cook County paid sick leave as well as other state and local leave laws; and development of personnel policies and employment handbooks.  Tracey has served as lead counsel in single and multiple-plaintiff employment discrimination actions; in mediation and arbitration proceedings under FINRA and private ADR; in Sarbanes-Oxley, Dodd-Frank, OSHA 11(c) and other whistleblower actions before OSHA and the U.S. Department of Labor; and in labor arbitration cases involving discipline for fighting, harassment, theft, drug/alcohol use, falsification of records, absenteeism and fraudulent use of approved leave.