Disclaimer: this information is not intended to be exhaustive, nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.

Must we keep paying employees who are not working?

Under the Fair Labor Standards Act (FLSA), for the most part the answer is “no.” FLSA minimum-wage and overtime requirements attach to hours worked in a workweek, so employees who are not working are typically not entitled to the wages the FLSA requires. However, there are some exceptions.

If an employee is an FLSA salary, exempt employee, you may need to pay them in certain circumstances. If your office remains open but the employee is taking a personal day, you do not have to pay them for that day. 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. If you close the office, any exempt employee who performs at least some work in the employee’s designated seven-day workweek, the salary basis rules require that they be paid the entire salary for that particular workweek. If they do no work during the workweek, you do not have to pay them.

Also, non-exempt employees paid on a “fluctuating-workweek” basis under the FLSA normally must be paid their full fluctuating-workweek salaries for every workweek in which they perform any work.

If you have an employment contract, a collective bargaining agreement, or some policy or practice that is enforceable as a contract or under a state wage law, you will still need to abide by those.

Just because you do not have to pay employees, doesn’t mean you can’t. Given the publicity surrounding this outbreak, employers should consider the public relations aspect of not paying employees who may not be working if they have contracted or are avoiding the COVID-19 coronavirus. It is possible that these decisions could reach the media and damage your reputation and employee morale.

Can we charge time missed to vacation and leave balances?

In most cases, the answer is yes. The US Department of Labor has provided some guidance on this topic in an opinion letter that is accessible here. However, what an employer may, must, or cannot do where paid leave is concerned might be affected by an employment contract, a state leave policy, a collective bargaining agreement, or some policy or practice that is enforceable as a contract or under a state wage law.