Q: Will FLSA-exempt employees lose their exemption if they must perform more non-exempt duties?

Will an exempt employee under the Fair Labor Standards Act (FLSA) lose exempt status if he or she must work additional time performing nonexempt job duties in light of workforce changes due to COVID-19? As with many questions under the FLSA, the answer is that it depends on all of the facts and circumstances. However, employers should be aware that the Labor Department's regulations interpreting the exemptions for executive, administrative, and professional employee have a special section addressing emergencies. This provision states the general rule that an exempt employee will not lose exempt status by performing nonexempt work in an emergency, and discusses application of this rule in the context of emergencies that threaten the safety of employees, a cessation of operations, or serious damage to an employer's property.

Employers may also wish to review additional DOL commentary (see page 22189) stating that emergencies endangering public health or safety may also qualify as emergencies for the purposes of this rule, depending on circumstances.

Of course, always check your state and local rules, which may be different. 

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