Department of Labor issues opinion letters on COVID-related and other work challenges

The U.S. Department of Labor’s (“DOL”) Wage and Hour Division (“WHD”), which addresses the issue of compensable time under the Fair Labor Standards Act (“FLSA”), has issued opinion letters in an attempt to clarify the application of regulations in a COVID environment:

  • Compensation of travel time for non-exempt employees – While the focus of FLSA 2020-16 is geared toward the construction industry, the general principles are relevant to any employer with non-exempt employees who travel between sites for work.  The reason for the travel, the time when the travel takes place, and the method of travel are all important factors in determining whether the travel time is compensable. The travel time issue is also important as it relates to calculating whether a non-exempt employee is entitled to overtime pay. Generally, commuting to and from work is a pre-workday (preliminary) or post-workday (postliminary) activity.  However, the WHD has indicated that employers must compensate employees for travel time when the travel time is the result of a process that the employee must follow in the course of completing their day-to-day tasks. The time a foremen spends traveling from the employer’s principal place of business to the job site, whether remote or local, is compensable because the travel to the job site is required and is “integral and indispensable” to the foremen’s principal activities, (e.g.,  picking up the company truck and materials/tools for the particular job site). . For remote job sites between 1.5 and 4 hours’ worth of travel, the laborers’ travel time before the job and after the job is compensable if (a) the laborer drives and (b) the travel cuts across their normal work hours, even if on a non-workday.  If the laborer is a passenger to sites between 1.5 to 4 hours of travel, compensation should be offered if required to travel before or after regular work hours.
  • COVID Safety guidelines – The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued guidance and a one-page document to help employers understand which standards are most frequently cited during coronavirus-related inspections. OSHA has continuously released updated interim enforcement guidelines –  based on CDC updates – prioritizing COVID-19-related cases for the agency’s field offices.  The documents provide available resources that address the most frequently cited standards, including Respiratory Protection, Recording and Reporting Occupational Injuries and Illnesses, Personal Protective Equipment, and the General Duty Clause. Employers who discover or suspect a hazard must provide appropriate personal protective equipment (PPE), train employees on how to use it and ensure that employees do use it.  The type of PPE required will depend on the workplace and the job. For example, nurses may need gloves, gowns, face masks, eye protection and respirators if airborne precautions are necessary. OSHA has completed 179 inspections and imposed about $2.5 million in fines for COVID-19-related safety violations since the beginning of the pandemic, with the majority of citations for violations of respiratory protection rules. In addition to OSHA regulations, some states including Virginia and California have enacted specific employer coronavirus safety rules and others have imposed restrictions via Executive Order.
  • COVID-related reporting requirements – Under the Occupational Safety and Health Act, companies must report (within 24 hours) hospitalizations that occur within 24 hours of a work-related incident. In the context of the coronavirus, OSHA says that work-related exposure to the virus is the triggering “incident” and therefore is reportable if the hospitalization occurs within 24 hours of the exposure. Companies must report any fatalities if they occur within 30 days of the work-related exposure to the coronavirus. The company must report the fatality within eight hours of knowing both that the employee has died, and that the cause of death was a work-related case of the coronavirus.  
  • COVID-related record keeping requirements – Under the Families First Coronavirus Response Act, records relating to paid sick leave and expanded family and medical leave must be maintained for four years.  The U.S. Occupational Safety and Health Administration (OSHA) has also issued revised guidance on when a Covid-19 case must be recorded.  Employers should segregate the screening records of medical personnel in a confidential file separate from the employee’s personnel file and retain those records for the length of the employee’s employment, plus 30 years.
  • Compliance with Prevailing Wage Laws on Federal Projects – The U.S. Department of Labor has launched an education and enforcement initiative in Alabama, Florida, Georgia, Kentucky, Mississippi, North and South Carolina, and Tennessee to ensure construction companies that work on federal or federally assisted construction projects meet prevailing wage requirements of the Davis-Bacon Act (DBA) and the Davis-Bacon and Related Acts (DBRA).

In fiscal year 2020 investigations revealed that 78% of those investigated had DBA violations, resulting in employers paying $1,329,512 in back wages to 920 employees. Common violations disclosed during these investigations include employers’ failure to classify and pay workers for the category of work they actually perform; pay the prevailing wage, including applicable fringe benefits, for all the hours employees work; keep accurate records; and post the DBRA poster and all applicable wage determinations, as the law requires.

Education programs will be delivered to federal contracting agencies, the Small Business Administration, and local chapters of construction associations and employers to educate them about construction industry employers’ responsibilities, and how to prevent violations

The DBRA requires contractors and subcontractors performing work on federal and certain federally funded projects to pay workers prevailing wage rates and fringe benefits as determined by the U.S. Secretary of Labor and as included in their contracts.

For more details regarding these regulations and to determine how this information affects your company lease consult your legal counsel.