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How Do I Pay Employees for COVID-19 Telework?

Client Alert

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.


The Ohio Chemical Dependency Professionals Board’s Latest Batch of Rules: What Providers Should Know

The Ohio Chemical Dependency Professionals Board has introduced new rules and amendments, covering various aspects such as CDCA certificate requirements, expanded services for LCDCs and CDCAs, remote supervision, and reciprocity application requirements. Notable changes include revised criteria for obtaining a CDCA certification, expanded services for LCDCs and CDCAs, and updated ethical obligations for licensees and certificate holders, including non-discrimination, confidentiality, and anti-sexual harassment measures.

Governor Mike DeWine and The Ohio State University Introduce the SOAR Study on Ohio Mental Illness

On January 19, Ohio Gov. Mike DeWine and The Ohio State University announced a new research initiative, the State of Ohio Adversity and Resilience (“SOAR”) study, which will investigate all factors influencing Ohio’s mental illness and addiction epidemic.

CHANGING TIDES: Summary and Effects of Burnett et. al. v. National Ass’n of Realtors, et. al.

In April 2019, a class-action Complaint was filed in federal court for the Western District Court for Missouri arguing that the traditional payment agreements employed by many across the United States amounted to conspiracy resulting in the artificial increase in brokerage commissions. Plaintiffs, a class-action group comprised of sellers, argued that they paid excessive brokerage commissions upon the sale of their home as a result of the customary payment structure where Sellers agree to pay the full commission on the sale of their property, with Seller’s agent notating the portion of commission they are willing to pay to a Buyer’s agent at closing on the MLS or other similar system.

The Ohio Board of Pharmacy’s Latest Batch of Rules: What Providers Should Know

The Ohio Board of Pharmacy released several new rules and proposed amendments to existing rules over the past month that will significantly impact pharmacy operations. Topics range from updates to the Terminal Distributor of Dangerous Drugs license to mobile clinics to mandatory rest breaks for pharmacists of outpatient pharmacies. A summary of the proposed changes is below, along with instructions for commenting on the rules. Your BMD healthcare attorney can help write comment letters and submit the comments on your behalf as well.

Employee or Independent Contractor? New Guidance Issued by the Department of Labor

On January 9, 2024, the U.S. Department of Labor (DOL) issued its long-awaited final rule — effective March 11, 2024 — revising its prior interpretation of worker classifications under the federal Fair Labor Standards Act (FLSA). The new final rule rescinds the standard previously established in 2021, in turn, shifting the analysis of whether a worker is an employee (versus an independent contractor) of a business from a more streamlined “economic reality” test to a more complex “totality of the circumstances” standard.