Included within the Labor Department’s final rule implementing the new paid leave mandates included within the Families First Coronavirus Protection Act is a provision discussing application of DOL’s “continuous workday” guidance under the Fair Labor Standards Act (FLSA). This guidance, codified at 29 C.F.R. §790.6, generally states that the workday begins when an employee performs his or her first principal activity of the workday and ends when an employee performs the last principal activity, with the exception of bona fide meal and other breaks consistent with DOL’s regulations.
The continuous workday rule has been a challenge when employees covered by the FLSA’s overtime provisions perform some minor amount of work at home before or after the workday and can have the effect of turning an employee’s normal commuting time into compensable time. This is one of the reasons that many employers prevent nonexempt employees from checking email or otherwise engaging in work tasks at home before or after normal working hours.
The new paid leave regulations (in the rule’s definition of “Telework” at § 826.10(a) and related commentary), DOL states that the guidance does not apply to telework related to COVID-19. This is to encourage employers to utilize “highly flexible telework arrangements that allow employees to perform work, potentially at unconventional times, while tending to other family responsibilities.” Of course, employees must be paid for all time actually worked.