Expand AllClick here for a more accessible versionMy business is experiencing a shortage of workers because of COVID-19. Can I ask for "volunteers" to keep operations going?
In general, covered, nonexempt workers working for private, for-profit employers have to be paid at least the minimum wage and cannot volunteer their services.
Pennsylvania's Minimum Wage Act (MWA) requires employers to pay its employees a minimum of $7.25 per hour for all hours worked.
Section 5 of the MWA, which provides for exemptions from the minimum wage and overtime provisions, may be applicable.
Section 5(a)(6) provides that a person is exempt from receiving minimum wage and overtime pay when the employee is employed in the activities of an educational, charitable, religious, or nonprofit organization where the employer/employee relationship does not in fact exist or where the services are rendered to the organization gratuitously.
My hourly employee worked a partial week because my business closed due to COVID-19. Am I required to pay them for the hours they actually worked or the hours they were scheduled to work?
For a non-exempt employee, the PMWA requires that employees be paid for all hours worked. It does not require employers who are unable to provide work to non-exempt employees to pay them for hours the employee would have worked otherwise.
For an exempt employee, generally they must receive their full salary in any week for which they perform any work, with very limited exceptions.
If a school is physically closed during the COVID-19 emergency declared by Governor Tom Wolf, does a minor have to appear personally before the issuing officer in order to obtain a work permit?
The regulatory requirements for a minor to personally appear before the issuing officer and for the minor to sign the permit in the issuing officer's presence before a work permit can be issued are currently suspended for the duration of the Governor's disaster declaration.
In lieu of a personal appearance before the issuing officer, examinations may occur by video.
Can I have minor employees work additional hours?
The Child Labor Act has different limits on the number of hours a minor is permitted to work depending on the minor's age and whether school is in session.
School is only considered to be in session if the local school district requires minor students to attend classes at a physical location or to participate in distance learning.
If the local school district does not require distance learning, then the minor can work additional hours.
Please review the Child Labor Act to obtain specific information on the number of hours a particular minor may work when school is not in session.
If I direct my salaried, exempt employees to take vacation (or leave bank deductions) or leave without pay during office closures due to COVID-19, will this impact the employee's exempt status?
There is no prohibition against an employer providing vacation time and later requiring that such vacation time be taken on a specific day(s). A private employer may direct exempt staff to take vacation or debit their leave bank account, whether for a full or partial day's absence, provided the employees receive in payment an amount equal to their guaranteed salary.
My employee is under medically or governmentally directed self-isolation or quarantine because of COVID-19. What are my obligations to that employee?
L&I is encouraging employers to be accommodating and flexible with workers. Employers may offer alternative work arrangements, such as teleworking and additional paid time off to employees. If you are an employer with fewer than 500 employees, your employees may be eligible under the federal Families First Coronavirus Response Act for paid sick leave and/or expanded Family and Medical Leave (FMLA) because of they have been exposed to, are sick from, are caring for someone who was exposed to or are sick from or their child’s school or child care is closed due to COVID-19. The US Department of Labor administers these programs. To find out more, please visit their website.
If your employee is unable to work because of exposure to or symptoms of COVID-19 and there is no paid leave available to them, they may be eligible for unemployment or workers' compensation benefits.
How many hours per day or per week can an employee work?
The Pennsylvania Minimum Wage Act does not limit the number of hours that an employee over the age of 18 can be required to work.
Can an employee be required to perform work outside of the employee's job description?
The Pennsylvania Minimum Wage Act does not limit the types of work employees over the age of 18 can work.
A collective bargaining agreement could have an impact and employees covered by them should consult with their union with further questions.
May an employer encourage or require employees to telework (i.e., work from an alternative location such as home) as an infection control strategy?
Yes, an employer may encourage or require employees to telework.
Do employers have to pay employees their same hourly rate or salary if they work at home?
Employers can change employee pay as long as they follow the PMWA. However, under the Wage Payment and Collection Law (WPCL), employers in Pennsylvania are required to notify employees of their rate of pay prior to hiring them and inform employees in advance of any changes.
In the event an organization bars employees from working from their current place of business and requires them to work at home, will employers have to pay those employees who are unable to work from home?
Under the PMWA, employers are generally only obligated to pay their employees for hours actually worked whether at home or on site.
Are businesses and other employers required to cover any additional costs that employees may incur if they work from home (such as internet, computer, additional phone line, increased use of electricity, etc.)?
No, employers are only required to pay employees for hours worked. Any other benefits could be offered but are not mandatory.
Do OSHA's regulations and standards apply to the home office? Are there any other federal or state laws employers need to worry about if employees work from home?
According to the Pennsylvania Industrial Homework Law, there are limits on employees performing tasks of assembling industrial products at home, but any other questions may have to be referred to OSHA.
In the event an employer brings on temporary employees from a staffing agency to supplement its workforce due to staffing shortages, is the employer required to adhere the wage requirements of the Fair Labor Standards Act (FLSA)?
When two or more employers jointly employ an employee, the employee's hours worked for both of the joint employers during the workweek are aggregated and considered as one employment, including for purposes of calculating whether overtime is due. Additionally, when joint employment exists, both joint employers are jointly and severally liable for compliance with the PMWA.
If your business has a shortage of workers and is looking to “volunteers” to help out.
In general, covered, nonexempt workers working for private, for-profit employers have to be paid at least the minimum wage and cannot volunteer their services.
Pennsylvania’s Minimum Wage Act (MWA) requires employers to pay its employees a minimum of $7.25 per hour for all hours worked.
Section 5 of the MWA, which provides for exemptions from the minimum wage and overtime provisions, may be applicable.
Section 5(a)(6) provides that a person is exempt from receiving minimum wage and overtime pay when the employee is employed in the activities of an educational, charitable, religious, or nonprofit organization where the employer/employee relationship does not in fact exist or where the services are rendered to the organization gratuitously.
How many hours is an employer obligated to pay an hourly-paid employee who works a partial week because the employer’s business closed?
The Pennsylvania Minimum Wage Act requires that employees be paid for all hours worked.
It does not require employers who are unable to provide work to employees to pay them for hours the employees would have otherwise worked.
Generally, salaried employees who are exempt from overtime must receive their full salary in any week in which they perform work, subject to very limited exceptions.
What are an employer’s obligations to an employee who is under government-imposed quarantine?
The Pennsylvania Department of Labor & Industry is encouraging employers to be accommodating and flexible with workers.
Employers may offer alternative work arrangements, such as teleworking and additional paid time off to employees, but are not under legal obligation to do so.
The federal government has also enacted the Families First Coronavirus Response Act (FFCRA), which provides paid sick leave and extended Family and Medical Leave Act (FMLA) protections.
Please refer to the United States Department of Labor for additional questions regarding paid sick leave and extended FMLA benefits.
If individuals volunteer to a private, non-for-profit organization that they work for, are they entitled to compensation?
It may be permissible for an employee of a non-profit to volunteer services that are not the same or similar to the employee’s typical job duties and which are not performed during the employee's typical working hours.
Are there limits to the type of work that can be performed at home?
The Industrial Homework Law prohibits the home manufacture of:
- Articles of food or drink
- Articles for use in connection with the serving of food or drink
- Toys and dolls
- Tobacco, drugs, and poisons
- Bandages and other sanitary goods
- Explosives, fireworks, and articles of like character
- The tearing or sewing of rags and articles
- The processing of which requires exposure to substances determined by the department to be hazardous to the health or safety of persons
All home manufacturing of goods is prohibited unless the department issues a permit.
You may also wish to contact OSHA regarding whether federal safety regulations apply to working from home.
In the event an employer brings on temporary employees from a staffing agency to supplement its workforce due to staffing shortages, is the employer liable if the temporary employees are not paid in accordance with the wage requirements of the Pennsylvania Minimum Wage Act?
When two or more employers jointly employ an employee, the employee’s hours worked for all of the joint employers during the workweek are aggregated and considered as one employment, including for purposes of calculating whether overtime is due.
Additionally, when joint employment exists, all of the joint employers are jointly and severally liable for compliance with the Pennsylvania Minimum Wage Act.
Can I require minor employees to work additional hours?
The Child Labor Act has different limits on the number of hours a minor is permitted to work depending on the minor’s age and whether school is in session.
School is only considered to be in session if the local school district requires minor students to attend classes at a physical location or to participate in distance learning.
If the local school district does not require distance learning, then the minor can work additional hours.
Please review the Child Labor Act to obtain specific information on the number of hours a particular minor may work when school is not in session.
During the recent declared state of emergency and in conjunction with Governor Wolf’s mandated school closings, does a minor have to appear personally before the issuing officer in order to obtain a work permit?
The regulatory requirements for a minor to personally appear before the issuing officer and for the minor to sign the permit in the issuing officer’s presence before a work permit can be issued are currently suspended for the duration of the Governor’s disaster declaration.
In lieu of a personal appearance before the issuing officer, examinations may occur by video.
Can employers require employees to take a COVID-19 test?
Yes, employers can require employees take a COVID-19 test, regardless of whether employees are experiencing symptoms.
Employers should be aware that the Medical Pay Law (PDF) states that if an employer requires an employee to undergo a medical examination, including a COVID-19 test, in order to continue working, then the employer is responsible for paying for that examination unless another statute requires that examination as a condition for employment.
In addition, under the Minimum Wage Act, time spent at a doctor’s office waiting for an examination or receiving medical attention at direction of the employer is considered hours worked if the examination occurs during the employee’s normal working hours.
However, time spent undergoing a medical examination during a day an employee is off work is not compensable.
Employers who employ union employees are also encouraged to review the contract before requiring medical examinations.
Act 102 prohibits a health care facility from requiring employees to work more than agreed to, predetermined shifts and regularly scheduled work shifts.
During the recent declared state of emergency and in conjunction, with COVID-19, is a health care facility permitted to mandate overtime?
Act 102 does not prohibit an employer from mandating overtime if the mandation occurs due to unforeseeable emergent circumstances. Act 102 defines unforeseeable emergent circumstances to include widespread disease outbreaks. Therefore, if there is a widespread disease outbreak and that outbreak results in a mandation of overtime, there is no violation of Act 102 provided that the health care facility exhausted reasonable efforts to avoid mandation.
The Bureau would need to investigate the cause for mandating at a health care facility and whether the health care facility exhausted reasonable efforts to avoid mandation.
Act 102 regulations state that an aggrieved employee who believes there is a violation of this act against him/her by a health care facility or employer may file a complaint, within 60 days of the violation, with the Bureau of Labor Law Compliance.
The regulations require that the bureau record the date of receipt on a complaint and will review and begin investigation of a complaint within 60 days of receipt. Do these regulations apply during the declared state of emergency?
The deadlines for reporting a complaint and for reviewing and beginning an investigation into a complaint are suspended for the duration of the Governor’s disaster declaration.
The bureau will continue to investigate complaints.