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Remember FLSA when navigating coronavirus

Paula Burkes
by Paula Burkes
Published: Fri, March 13, 2020 5:00 AM

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Does a company have to compensate non-exempt employees for absences due to COVID-19?

Whether the absences are due to infection, exposure or suspended operations or reduced employees' hours, the legal analysis for non-exempt or "hourly" employees is fairly straightforward. The Fair Labor Standards Act only requires employers to compensate non-exempt employees for time actually worked. This is also true if a company reduces hours because its revenue is suffering due to international restrictions. Employers, however, need to review their policies and benefit plans, where certain obligations still may apply.

What about deducting pay from exempt employees for absences?

Most FLSA exemptions require that the employee be paid on a salary basis. To be paid on a salary basis means the employee is paid a predetermined weekly salary of at least $684, regardless of how many hours they work in the workweek. In other words, if an exempt employee works one hour on Monday and takes the rest of the week off due to illness, then the employer may be required to pay her entire weekly salary. FLSA regulations allow employers to make deductions from exempt employee salaries for one or more full days occasioned by sickness or disability provided that the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by that sickness or disability. In plain English, if the employer has created a benefits plan that specifically allows for paid leave in the event of sickness or disability (i.e., paid vacation time, paid sick leave, general paid time off), the employer may "deduct" and substitute with these types of available paid leave in order to provide the regular salary.

Does a company have to pay exempt employees' entire salary even if it temporarily suspends business operations?

Maybe. If an exempt employee performs no work for an entire workweek, then the employer does not have to pay the employee his or her salary for that week. That means furloughing an exempt employee for an entire workweek relieves an employer of paying the employee for that week. On the other hand, the general rule is that if an exempt employee works part of a workweek and is furloughed for the rest of the week, he or she is entitled to be paid his or her entire salary for that workweek. But, there's a narrow exception to the rule that an exempt employee's salary can't be reduced based on the low quantity of available work. The FLSA does not prohibit employers from prospectively reducing an exempt employee's predetermined salary amount during an extended period of economic slowdown. Such a reduction in salary won't forfeit the employee's exempt status, as long as the employee's weekly predetermined salary is at least $684 per week. The U.S. Department of Labor has explained that such reductions in salary must be "bona fide and not used as a device to evade the salary basis requirements." It's also important to remember that once the employee's new salary is determined, it can't fluctuate week to week based on the quantity or quality of work. The Department of Labor has stated that such prospective reductions of salaries are intended only to address long-term business needs. Employers should utilize this exception only when they anticipate a prolonged economic downturn.

Paula Burkes, Business writer

Related Photos
<strong>Jacob S. Crawford is an attorney with McAfee & Taft.</strong>

Jacob S. Crawford is an attorney with McAfee & Taft.

All games in the state high school basketball tournament were postponed due to the new coronavirus, at Jim Norick Arena, The Big House, at State Fair Park in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]
A sign announces the postponement of the state high school basketball tournament due to the new coronavirus, at Jim Norick Arena, The Big House, at State Fair Park in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]
A sign announces the postponement of the state high school basketball tournament due to the new coronavirus, at Jim Norick Arena, The Big House, at State Fair Park in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]
Jimmy Gibson, of Tulsa, Okla., reads a sign announcing the postponement of the state high school basketball tournament due to the new coronavirus, at Jim Norick Arena, The Big House, at State Fair Park in Oklahoma City, Thursday, March 12, 2020. Gibson drove to Oklahoma City to see Sequoyah (Tahlequah) play in the Class 3A state basketball tournament. [Nate Billings/The Oklahoman]
Students are silhouetted after school outside of Northwest Classen High School n Oklahoma City, Thursday, March 12, 2020. Oklahoma City Pubic Schools will be closed Friday, March 13, due to the new coronavirus before starting spring break the following week. [Nate Billings/The Oklahoman]
Students are silhouetted after school outside of Northwest Classen High School n Oklahoma City, Thursday, March 12, 2020. Oklahoma City Pubic Schools will be closed Friday, March 13, due to the new coronavirus before starting spring break the following week. [Nate Billings/The Oklahoman]
+12+15A school bus arrive at Del City High School in Del City, Okla. on Thursday, March 12, 2020. Utah Jazz player Donovan Mitchell who tested positive for the coronavirus had a workout session at the school on Tuesday evening. [Chris Landsberger/The Oklahoman]
<figure><img src="//cdn2.newsok.biz/cache/r960-082c7e8439d0a0071ba8ffa54a3406ae.jpg" alt="Photo - Jacob S. Crawford is an attorney with McAfee &amp; Taft. " title=" Jacob S. Crawford is an attorney with McAfee &amp; Taft. "><figcaption> Jacob S. Crawford is an attorney with McAfee &amp; Taft. </figcaption></figure><figure><img src="//cdn2.newsok.biz/cache/r960-c45762ca7aef68c6dfb11ffb11ef229d.jpg" alt="Photo - All games in the state high school basketball tournament were postponed due to the new coronavirus, at Jim Norick Arena, The Big House, at State Fair Park in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]" title="All games in the state high school basketball tournament were postponed due to the new coronavirus, at Jim Norick Arena, The Big House, at State Fair Park in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]"><figcaption>All games in the state high school basketball tournament were postponed due to the new coronavirus, at Jim Norick Arena, The Big House, at State Fair Park in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]</figcaption></figure><figure><img src="//cdn2.newsok.biz/cache/r960-f47289187aee729762751e282132fbf6.jpg" alt="Photo - A sign announces the postponement of the state high school basketball tournament due to the new coronavirus, at Jim Norick Arena, The Big House, at State Fair Park in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]" title="A sign announces the postponement of the state high school basketball tournament due to the new coronavirus, at Jim Norick Arena, The Big House, at State Fair Park in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]"><figcaption>A sign announces the postponement of the state high school basketball tournament due to the new coronavirus, at Jim Norick Arena, The Big House, at State Fair Park in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]</figcaption></figure><figure><img src="//cdn2.newsok.biz/cache/r960-a60246650fce62557f77164d61b33487.jpg" alt="Photo - A sign announces the postponement of the state high school basketball tournament due to the new coronavirus, at Jim Norick Arena, The Big House, at State Fair Park in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]" title="A sign announces the postponement of the state high school basketball tournament due to the new coronavirus, at Jim Norick Arena, The Big House, at State Fair Park in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]"><figcaption>A sign announces the postponement of the state high school basketball tournament due to the new coronavirus, at Jim Norick Arena, The Big House, at State Fair Park in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]</figcaption></figure><figure><img src="//cdn2.newsok.biz/cache/r960-b1f4a7914ae3405ce35014b81e9c7e5f.jpg" alt="Photo - Jimmy Gibson, of Tulsa, Okla., reads a sign announcing the postponement of the state high school basketball tournament due to the new coronavirus, at Jim Norick Arena, The Big House, at State Fair Park in Oklahoma City, Thursday, March 12, 2020. Gibson drove to Oklahoma City to see Sequoyah (Tahlequah) play in the Class 3A state basketball tournament. [Nate Billings/The Oklahoman]" title="Jimmy Gibson, of Tulsa, Okla., reads a sign announcing the postponement of the state high school basketball tournament due to the new coronavirus, at Jim Norick Arena, The Big House, at State Fair Park in Oklahoma City, Thursday, March 12, 2020. Gibson drove to Oklahoma City to see Sequoyah (Tahlequah) play in the Class 3A state basketball tournament. [Nate Billings/The Oklahoman]"><figcaption>Jimmy Gibson, of Tulsa, Okla., reads a sign announcing the postponement of the state high school basketball tournament due to the new coronavirus, at Jim Norick Arena, The Big House, at State Fair Park in Oklahoma City, Thursday, March 12, 2020. Gibson drove to Oklahoma City to see Sequoyah (Tahlequah) play in the Class 3A state basketball tournament. [Nate Billings/The Oklahoman]</figcaption></figure><figure><img src="//cdn2.newsok.biz/cache/r960-3b2b22158762b1e8dcfe51b34555b5be.jpg" alt="Photo - Students are silhouetted after school outside of Northwest Classen High School n Oklahoma City, Thursday, March 12, 2020. Oklahoma City Pubic Schools will be closed Friday, March 13, due to the new coronavirus before starting spring break the following week. [Nate Billings/The Oklahoman]" title="Students are silhouetted after school outside of Northwest Classen High School n Oklahoma City, Thursday, March 12, 2020. Oklahoma City Pubic Schools will be closed Friday, March 13, due to the new coronavirus before starting spring break the following week. [Nate Billings/The Oklahoman]"><figcaption>Students are silhouetted after school outside of Northwest Classen High School n Oklahoma City, Thursday, March 12, 2020. Oklahoma City Pubic Schools will be closed Friday, March 13, due to the new coronavirus before starting spring break the following week. [Nate Billings/The Oklahoman]</figcaption></figure><figure><img src="//cdn2.newsok.biz/cache/r960-9de2c1ab5ea9c20bad60252c7f5752e2.jpg" alt="Photo - Students are silhouetted after school outside of Northwest Classen High School n Oklahoma City, Thursday, March 12, 2020. Oklahoma City Pubic Schools will be closed Friday, March 13, due to the new coronavirus before starting spring break the following week. [Nate Billings/The Oklahoman]" title="Students are silhouetted after school outside of Northwest Classen High School n Oklahoma City, Thursday, March 12, 2020. Oklahoma City Pubic Schools will be closed Friday, March 13, due to the new coronavirus before starting spring break the following week. [Nate Billings/The Oklahoman]"><figcaption>Students are silhouetted after school outside of Northwest Classen High School n Oklahoma City, Thursday, March 12, 2020. Oklahoma City Pubic Schools will be closed Friday, March 13, due to the new coronavirus before starting spring break the following week. [Nate Billings/The Oklahoman]</figcaption></figure><figure><img src="//cdn2.newsok.biz/cache/r960-e52975625532653e3cb0912ca2cdf2e9.jpg" alt="Photo - A school bus arrive at Del City High School in Del City, Okla. on Thursday, March 12, 2020. Utah Jazz player Donovan Mitchell who tested positive for the coronavirus had a workout session at the school on Tuesday evening. [Chris Landsberger/The Oklahoman] " title="A school bus arrive at Del City High School in Del City, Okla. on Thursday, March 12, 2020. Utah Jazz player Donovan Mitchell who tested positive for the coronavirus had a workout session at the school on Tuesday evening. [Chris Landsberger/The Oklahoman] "><figcaption>A school bus arrive at Del City High School in Del City, Okla. on Thursday, March 12, 2020. Utah Jazz player Donovan Mitchell who tested positive for the coronavirus had a workout session at the school on Tuesday evening. [Chris Landsberger/The Oklahoman] </figcaption></figure><figure><img src="//cdn2.newsok.biz/cache/r960-d8e55215d44f81b5fb046fadeac25cd8.jpg" alt="Photo - A student leaves Del City High School in Del City, Okla. on Thursday, March 12, 2020. Utah Jazz player Donovan Mitchell who tested positive for the coronavirus had a workout session at the school on Tuesday evening. [Chris Landsberger/The Oklahoman] " title="A student leaves Del City High School in Del City, Okla. on Thursday, March 12, 2020. Utah Jazz player Donovan Mitchell who tested positive for the coronavirus had a workout session at the school on Tuesday evening. [Chris Landsberger/The Oklahoman] "><figcaption>A student leaves Del City High School in Del City, Okla. on Thursday, March 12, 2020. Utah Jazz player Donovan Mitchell who tested positive for the coronavirus had a workout session at the school on Tuesday evening. [Chris Landsberger/The Oklahoman] </figcaption></figure><figure><img src="//cdn2.newsok.biz/cache/r960-c85823bd14cc0b58a8bebd57660e5ed7.jpg" alt="Photo - A school bus passes Del City High School in Del City, Okla. on Thursday, March 12, 2020. Utah Jazz player Donovan Mitchell who tested positive for the coronavirus had a workout session at the school on Tuesday evening. [Chris Landsberger/The Oklahoman] " title="A school bus passes Del City High School in Del City, Okla. on Thursday, March 12, 2020. Utah Jazz player Donovan Mitchell who tested positive for the coronavirus had a workout session at the school on Tuesday evening. [Chris Landsberger/The Oklahoman] "><figcaption>A school bus passes Del City High School in Del City, Okla. on Thursday, March 12, 2020. Utah Jazz player Donovan Mitchell who tested positive for the coronavirus had a workout session at the school on Tuesday evening. [Chris Landsberger/The Oklahoman] </figcaption></figure><figure><img src="//cdn2.newsok.biz/cache/r960-c95aeac67f91518ca6a9a483ad97a1e2.jpg" alt="Photo - Signs hang on the door at Yukon High School announcing the cancelation of the Oklahoma Secondary School Activities Association state basketball playoff games at the school in Yukon, Okla. on Thursday, March 12, 2020. [Chris Landsberger/The Oklahoman] " title="Signs hang on the door at Yukon High School announcing the cancelation of the Oklahoma Secondary School Activities Association state basketball playoff games at the school in Yukon, Okla. on Thursday, March 12, 2020. [Chris Landsberger/The Oklahoman] "><figcaption>Signs hang on the door at Yukon High School announcing the cancelation of the Oklahoma Secondary School Activities Association state basketball playoff games at the school in Yukon, Okla. on Thursday, March 12, 2020. [Chris Landsberger/The Oklahoman] </figcaption></figure><figure><img src="//cdn2.newsok.biz/cache/r960-0a0223dadfc0268c621f138c754656ea.jpg" alt="Photo - Signs hang on the door at Yukon High School announcing the cancelation of the Oklahoma Secondary School Activities Association state basketball playoff games at the school in Yukon, Okla. on Thursday, March 12, 2020. [Chris Landsberger/The Oklahoman] " title="Signs hang on the door at Yukon High School announcing the cancelation of the Oklahoma Secondary School Activities Association state basketball playoff games at the school in Yukon, Okla. on Thursday, March 12, 2020. [Chris Landsberger/The Oklahoman] "><figcaption>Signs hang on the door at Yukon High School announcing the cancelation of the Oklahoma Secondary School Activities Association state basketball playoff games at the school in Yukon, Okla. on Thursday, March 12, 2020. [Chris Landsberger/The Oklahoman] </figcaption></figure><figure><img src="//cdn2.newsok.biz/cache/r960-b74c867a1ef18a049872417663c1f293.jpg" alt="Photo - Yukon High School's John Paul Esparza takes down parking signs as he goes through the doors where signs hang on the door at Yukon High School announcing the cancelation of the Oklahoma Secondary School Activities Association state basketball playoff games at the school in Yukon, Okla. on Thursday, March 12, 2020. [Chris Landsberger/The Oklahoman] " title="Yukon High School's John Paul Esparza takes down parking signs as he goes through the doors where signs hang on the door at Yukon High School announcing the cancelation of the Oklahoma Secondary School Activities Association state basketball playoff games at the school in Yukon, Okla. on Thursday, March 12, 2020. [Chris Landsberger/The Oklahoman] "><figcaption>Yukon High School's John Paul Esparza takes down parking signs as he goes through the doors where signs hang on the door at Yukon High School announcing the cancelation of the Oklahoma Secondary School Activities Association state basketball playoff games at the school in Yukon, Okla. on Thursday, March 12, 2020. [Chris Landsberger/The Oklahoman] </figcaption></figure><figure><img src="//cdn2.newsok.biz/cache/r960-c99127b7e3008abc9e370b258aae1c8d.jpg" alt="Photo - David Jackson, OSSAA executive director, speaks during a press conference at the Oklahoma Secondary School Activities Association office announcing the postponement of OSSAA events, including the state basketball tournament, due to the new coronavirus, in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]" title="David Jackson, OSSAA executive director, speaks during a press conference at the Oklahoma Secondary School Activities Association office announcing the postponement of OSSAA events, including the state basketball tournament, due to the new coronavirus, in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]"><figcaption>David Jackson, OSSAA executive director, speaks during a press conference at the Oklahoma Secondary School Activities Association office announcing the postponement of OSSAA events, including the state basketball tournament, due to the new coronavirus, in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]</figcaption></figure><figure><img src="//cdn2.newsok.biz/cache/r960-5b1f78538d938e9d9cd5c4119398ac9a.jpg" alt="Photo - OSSAA executive director David Jackson, center, speaks next to OSSAA board president and Millwood superintendent Cecilia Robinson-Woods, right, and OSSAA board vice president and Guthrie superintendent Mike Simpson, left, during a press conference at the Oklahoma Secondary School Activities Association office announcing the postponement of OSSAA events, including the state basketball tournament, due to the new coronavirus, in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]" title="OSSAA executive director David Jackson, center, speaks next to OSSAA board president and Millwood superintendent Cecilia Robinson-Woods, right, and OSSAA board vice president and Guthrie superintendent Mike Simpson, left, during a press conference at the Oklahoma Secondary School Activities Association office announcing the postponement of OSSAA events, including the state basketball tournament, due to the new coronavirus, in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]"><figcaption>OSSAA executive director David Jackson, center, speaks next to OSSAA board president and Millwood superintendent Cecilia Robinson-Woods, right, and OSSAA board vice president and Guthrie superintendent Mike Simpson, left, during a press conference at the Oklahoma Secondary School Activities Association office announcing the postponement of OSSAA events, including the state basketball tournament, due to the new coronavirus, in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]</figcaption></figure><figure><img src="//cdn2.newsok.biz/cache/r960-5e3f754abc608b0b308807919ff63a8c.jpg" alt="Photo - Cecilia Robinson-Woods, OSSAA board president and Millwood superintendent, speaks during a press conference at the Oklahoma Secondary School Activities Association office announcing the postponement of OSSAA events, including the state basketball tournament, due to the new coronavirus, in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]" title="Cecilia Robinson-Woods, OSSAA board president and Millwood superintendent, speaks during a press conference at the Oklahoma Secondary School Activities Association office announcing the postponement of OSSAA events, including the state basketball tournament, due to the new coronavirus, in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]"><figcaption>Cecilia Robinson-Woods, OSSAA board president and Millwood superintendent, speaks during a press conference at the Oklahoma Secondary School Activities Association office announcing the postponement of OSSAA events, including the state basketball tournament, due to the new coronavirus, in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]</figcaption></figure><figure><img src="//cdn2.newsok.biz/cache/r960-9c6490871f1476889b1a8d013fe22f35.jpg" alt="Photo - David Jackson, OSSAA executive director, speaks during a press conference at the Oklahoma Secondary School Activities Association office announcing the postponement of OSSAA events, including the state basketball tournament, due to the new coronavirus, in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]" title="David Jackson, OSSAA executive director, speaks during a press conference at the Oklahoma Secondary School Activities Association office announcing the postponement of OSSAA events, including the state basketball tournament, due to the new coronavirus, in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]"><figcaption>David Jackson, OSSAA executive director, speaks during a press conference at the Oklahoma Secondary School Activities Association office announcing the postponement of OSSAA events, including the state basketball tournament, due to the new coronavirus, in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]</figcaption></figure><figure><img src="//cdn2.newsok.biz/cache/r960-fcc8c6f24ac938e8920ebd6ee07e1f1b.jpg" alt="Photo - From right, Cecilia Robinson-Woods, OSSAA board president and Millwood superintendent, speaks next to David Jackson, OSSAA executive director, and Mike Simpson, OSSAA board vice president and Guthrie superintendent, during a press conference at the Oklahoma Secondary School Activities Association office announcing the postponement of OSSAA events, including the state basketball tournament, due to the new coronavirus, in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]" title="From right, Cecilia Robinson-Woods, OSSAA board president and Millwood superintendent, speaks next to David Jackson, OSSAA executive director, and Mike Simpson, OSSAA board vice president and Guthrie superintendent, during a press conference at the Oklahoma Secondary School Activities Association office announcing the postponement of OSSAA events, including the state basketball tournament, due to the new coronavirus, in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]"><figcaption>From right, Cecilia Robinson-Woods, OSSAA board president and Millwood superintendent, speaks next to David Jackson, OSSAA executive director, and Mike Simpson, OSSAA board vice president and Guthrie superintendent, during a press conference at the Oklahoma Secondary School Activities Association office announcing the postponement of OSSAA events, including the state basketball tournament, due to the new coronavirus, in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]</figcaption></figure><figure><img src="//cdn2.newsok.biz/cache/r960-9d418adae90d880cd87db1377b3dbdec.jpg" alt="Photo - From right, Cecilia Robinson-Woods, OSSAA board president and Millwood superintendent, speaks next to David Jackson, OSSAA executive director, and Mike Simpson, OSSAA board vice president and Guthrie superintendent, during a press conference at the Oklahoma Secondary School Activities Association office announcing the postponement of OSSAA events, including the state basketball tournament, due to the new coronavirus, in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]" title="From right, Cecilia Robinson-Woods, OSSAA board president and Millwood superintendent, speaks next to David Jackson, OSSAA executive director, and Mike Simpson, OSSAA board vice president and Guthrie superintendent, during a press conference at the Oklahoma Secondary School Activities Association office announcing the postponement of OSSAA events, including the state basketball tournament, due to the new coronavirus, in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]"><figcaption>From right, Cecilia Robinson-Woods, OSSAA board president and Millwood superintendent, speaks next to David Jackson, OSSAA executive director, and Mike Simpson, OSSAA board vice president and Guthrie superintendent, during a press conference at the Oklahoma Secondary School Activities Association office announcing the postponement of OSSAA events, including the state basketball tournament, due to the new coronavirus, in Oklahoma City, Thursday, March 12, 2020. [Nate Billings/The Oklahoman]</figcaption></figure>
Paula Burkes

Paula Burkes has nearly 40 years' experience writing and editing award-winning material, including since early 2001 with the business desk of The Oklahoman. After earning a journalism degree from Oklahoma State University in 1981, Paula wrote for... Read more ›

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