The two guidance documents reflect the WHD’s commitment to providing critical information about flexibilities “to better navigate the uncharted waters brought on by the coronavirus’ effects on the workplace.”
The DOL’s Wage and Hour Division (WHD) has issued two new Field Assistance Bulletins (FABs) on teleworking. As employers continue to meet the challenges presented by the COVID-19 pandemic, and as telework arrangements and virtual communication increasingly provide solutions, the WHD’s additional guidance is intended to maximize the benefits of these arrangements for employers and workers alike.
When will electronic postings meet statutory posting obligations? In FAB 2020-7, the WHD addresses when, as a matter of enforcement policy, it will consider electronic posting by employers (by email or an internet or intranet website) to satisfy the employer’s requirement to provide employees with required notice of their statutory rights under a variety of federal labor laws. In most cases, these electronic notices Continuous posting obligations. the statutory and regulatory requirements that employers post a hard-copy notice. Whether notices are provided electronically or in hard-copy format, it is an employer’s obligation to provide the required notices to all affected individuals.
Continuous posting obligations. Several of the statutes and their corresponding regulations administered by WHD, such as the FLSA, FMLA, and Davis Bacon and Related Acts, require employers to “post and keep posted” or require the posting of a notice “at all times” and, thus do not permit employers to meet their notice obligations through a direct mailing or other single notice to employees. Where a notice is required to be continuously posted at a worksite, in most cases, the WHD will only consider electronic posting an acceptable substitute for the continuous posting requirement where:
|1.||All of the employer’s employees exclusively work remotely;|
|2.||All employees customarily receive information from the employer via electronic means; and|
|3.||All employees have readily available access to the electronic posting at all times.|
This ensures that the electronic posting satisfies the statutory and regulatory requirements that such postings be continuously accessible to employees. Where an employer has employees on-site and other employees teleworking full-time, the employer may supplement a hard-copy posting requirement with electronic posting; the DOL encourages both methods of posting.
Access to posting. Where an employer seeks to meet a worksite posting requirement through electronic means, such as on an intranet site, internet website, or shared network drive or file system posting, the electronic notice must be as effective as a hard-copy posting. Where statutory provisions require that affected individuals be able to readily see a copy of the required postings and an employer chooses to meet a worksite posting requirement through electronic means, Factual determination..
Factual determination. Determining whether affected individuals can readily see an electronic posting depends on the facts. For example, the affected individuals must be capable of accessing the electronic posting without having to specifically request permission to view a file or access a computer. Consistent with its existing regulations, the WHD will not consider electronic posting on a website or intranet to be an effective means of providing notice when an employer does not customarily post notices to affected employees or other affected individuals electronically.
Moreover, consistent with the WHD’s practice, where the employer has not taken steps to inform employees of where and how to access the notice electronically, the employer will not be considered to have complied with the posting requirement. Posting on an unknown or little-known electronic location has the effect of hiding the notice, akin to posting a hard-copy notice in an inconspicuous place, such as a custodial closet or little-visited basement. Further, if the affected individuals cannot easily determine which electronic posting is applicable to them and their worksite, the WHD will consider the posting insufficient.
Individual notices. Some statutory provisions, such as the SCA and Section 14(c) of the FLSA, permit employers to meet notice requirements by delivering individual notices to each employee. Where statutes and regulations permit delivery of notices to individual employees, the notice requirements may be met through email delivery (or another similar method of electronic delivery), FLSA. where the employee customarily receives information from the employer electronically. This is consistent with the WHD’s existing regulations, which permit electronic delivery of required communications only where employees already regularly use such electronic communications.
Summary by statute. Below is a brief summary by statute of when, as a matter of enforcement policy, the WHD will consider employers’ electronic posting (by email or an internet or intranet website) to satisfy requirements to provide employees with notice of their statutory rights.
- FLSA. Given the requirement that employers maintain a continuous FLSA posting in every establishment where employees are employed where every employee can readily observe a copy, the WHD will consider an electronic posting to be sufficient to meet the requirements only if all employees exclusively work remotely, customarily receive information from the employer via electronic means, and have readily available access to the electronic posting at all times. Where all employees exclusively work from home and communicate with the employer through electronic means, an employer may satisfy the FLSA posting requirements by posting the required FLSA notice on an employee information internal or external website, or shared network drive or file system that is accessible at all times to all employees. Here, there is no physical establishment where employees are employed and employees can access the electronic posting at any time, and thus, the WHD will consider such electronic posting to meet the regulatory requirements that the notice be posted in a conspicuous place where employees are employed so as to permit them to readily observe a copy.
- FMLA. The WHD will consider electronic posting to satisfy the FMLA posting requirements where all hiring and work is done remotely and an employer posts the appropriate FMLA notice on an internal or external website that is accessible to all employees and applicants. When there is no physical establishment where employees are employed or where interviewing or hiring takes place and the electronic posting is accessible to employees and applicants at all times, the WHD will consider such electronic posting to meet the regulatory requirements that the notice be posted in a conspicuous place where employees are employed so as to permit employees and applicants to readily observe a copy.
- Section 14(c) of the FLSA. An employer who has workers employed under Section 14(c) subminimum wage certificates is required at all times to display and make available to employees a poster as prescribed and supplied by the Administrator, which must explain, in general terms, the conditions under which subminimum wages may be paid; it must be posted in a conspicuous place on the employer’s premises where it may be readily observed by the workers with disabilities, the parents and guardians of such workers, and other workers. Where the employer finds it inappropriate to post such a notice, the regulations permit an employer to satisfy this requirement by providing the poster directly to all employees subject to its terms. Thus, where an employer finds it inappropriate to post a physical notice to employees, the Section 14(c) posting requirements in 29 C.F.R. § 525.14 may be satisfied by emailing or direct mailing the poster to workers employed under 14(c) subminimum wage certificates or, where appropriate, the parents and/or guardians of such employees.
- Employee Polygraph Protection Act. Given the requirement that employers maintain a continuous EPPA workplace posting, electronic posting may be sufficient to meet this posting requirement if all employees exclusively work remotely and the hiring process for applicants occurs remotely, all employees and applicants customarily receive information from the employer via electronic means, and all employees or applicants have readily available access to the electronic posting at all times. Where all hiring and work is done remotely and employees and applicants communicate with the employer through electronic means, an employer may satisfy the EPPA posting requirements by posting this notice on an employee information internal or external website, or network shared drive or filing system that is accessible at all times to all employees and applicants. When there is no physical establishment where employees are employed or where interviewing or hiring takes place and employees and applicants can access the electronic posting at all times, the WHD will consider such electronic posting to meet the regulatory requirements that the notice be posted in a prominent or conspicuous place where employees are employed so as to permit employees and applicants to readily observe a copy.
- Service Contracts Act. Where all of the employees exclusively work remotely, customarily receive information from the employer via electronic means, and have readily available access to the electronic posting at all times, the WHD would consider this worksite posting requirement to be met if an electronic posting of WH Publication 1313, and the applicable wage determination, is as readily accessible to those workers as would be a hard-copy posting. An electronic posting will not be considered readily accessible where an employee must specifically request access to a computer or ask for file permissions to view the posting. Further, the employer must take steps to inform employees of how and where to access the electronic posting.
Telemedicine as “in-person” visit for FMLA purposes. In FAB 2020-8, the WHD discusses when it will consider telemedicine an “in-person” visit for purposes of establishing a “serious health condition” qualifying for protection under the FMLA. A “serious health condition” under the FMLA is an “illness, injury, impairment, or physical or mental condition that involves” either “inpatient care” such as an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care; or “continuing treatment by a health care provider.”
FMLA regulations define the term “treatment” to include “examinations to determine if a serious health condition exists and evaluations of the condition,” and also provide that “[t]reatment by a health care provider means an in-person visit to a health care provider.” (This provision was added in 2008 to clarify that treatment means an “examination, evaluation, or specific treatment, and does not include, for example, a phone call, letter, email, or text message”).
How it works. As the WHD explained, telemedicine typically involves face-to-face examinations or treatment of patients by remote video conference using computers or mobile devices. Telemedicine allows patients to maintain access to needed care, with added advantages such as decreased travel time and expense for patients in rural areas, reduced exposure to potential infections for vulnerable patients, and reduced need for healthcare staff to exhaust personal protective equipment and patient care supplies.
The WHD has found that health care providers are now frequently using telemedicine to deliver examinations, evaluations, and other healthcare services that would previously have been provided only in an office setting.
“In-person” visit criteria. In light of this trend, and continuing its policy adopted in response to the COVID-19 pandemic, the WHD will consider a telemedicine visit with a health care provider to be an “in-person” visit under 29 C.F.R. §825.115, provided the telemedicine meets the following criteria:
- It includes an examination, evaluation, or treatment by a health care provider;
- It is permitted and accepted by state licensing authorities; and
- Generally, should be performed by video conference.
Communication methods that do not meet these criteria (such as a simple telephone call, letter, email, or text message) are insufficient, by themselves, to satisfy the regulatory requirement of an “in-person” visit.
Providing flexibilities during pandemic. “The guidance issued today reflects our ongoing commitment to provide the workforce critical information about flexibilities that allow employers and employees to better navigate the uncharted waters brought on by the coronavirus’ effects on the workplace,” WHD Administrator Cheryl Stanton said in a statement. “These bulletins provide the workforce an opportunity to leverage the power of electronic communication while preserving the rights of all parties. WHD is proving that maintaining social distance need not distance workers nor employers from their rights, and that expanding flexibilities is key to the workforce’s continued recovery and growth as we emerge from this pandemic, and beyond.”
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