Employing Minors During COVID-19

Workers under the age of 18 are an important part of the workforce in many industries, including service businesses such as fast-food joints, restaurants, and ice-cream shops. Seasonal businesses, such as the recreational marine industry add minors to the staff to support the increase of business in the summer season.

There exists important federal and state rules that govern the employment of minors with respect to work permits, wages, hours of work, and various work restrictions. Further, as businesses begin reopening in this COVID-19 era and hiring such individuals, employers should ensure they are familiar with how return-to-work and similar policies apply to minors under other laws.

Remote Learning
With schools closing and offering virtual learning in the wake of COVID-19, it has been unclear when school is “in session.” As a result, the USDOL issued guidance on how virus-driven school closures affect these child-labor protections. School is “in session” during any week in which the school district in which a minor resides requires its students to attend school, either physically or through virtual or distance learning. Thus, if the district physically closes schools in response to COVID-19 but requires students to continue instruction through virtual or distance learning for at least one day or part of one day, school is technically “in session” for purposes of the FLSA.

While the FLSA places strict limitations on when and for how long 14- and 15-year-old employees may work while school is in session, the FLSA does not place similar limitations on 16- and 17-year-olds. However, several states impose limitations on when and for how long 16- and 17-year-old employees may work. Accordingly, employers should check the standards of employment within each state they operate to ensure they are complying with both federal and state laws with regards to employment of minors.

Hazardous Occupations
Federal law strictly prohibits the employment of minors in non-agricultural work falling within any of the USDOL’s list of hazardous occupations. These occupations include, but are not limited to, manufacturing or storing explosives, driving a motor vehicle, work as an outside helper on motor vehicles, coal mining, firefighting, using power-driven tools, being exposed to radioactive substances, and many more.

For the Recreational Marine Industry, these prohibitions would preclude minors from operating heavy equipment including Forklifts and Travelifts. Minor employees are not permitted to operate power tools such as circular saws, chop saws, or other power tools used in dock maintenance. The prohibitions also restrict the use of company vehicles and this restriction may include vessels.

Occupational Restrictions
In additional to the work limitations placed upon minors by the FLSA and various state laws, the FLSA further limits minors in the type of work they may perform based on their age group. Employers should clearly outline the job duties associated with any summer job to be performed by a minor. They cannot rely on a job title when determining if an occupation includes prohibited work. Rather, they must consider the actual job duties. Many times, employers mistakenly assume a role is permitted based on its title when the activities carried out in a position are prohibited. Employers should carefully review both the permitted and prohibited work, especially before hiring an individual under 16 years of age.

Further, employers should take time to train management on which tasks can and cannot be assigned to minors. It is important to memorialize such training by distributing a memorandum clearly indicating the child labor limitations for each minor employee. Finally, employers should consider informing other employees who will interact with the minor, and perhaps even the minor.

COVID-19-Related Concerns
Businesses that employ minors should reexamine applicable federal and state laws prior to implementing their return-to-work policies, particularly as related to the following:
• Health Screening. Where permitted, many employers are requiring returning employees to submit to a temperature screening to avoid the spread of COVID-19.The EEOC has expressly permitted such screening for adults but has not addressed the issue as it relates to minors. Importantly, this type of medical screening constitutes a “medical examination” under the Americans With Disabilities Act, and most states require parental consent before conducting medical examinations on minor employees. Thus, if a company safety plan involves employee medical screening, employers should seek parental consent before implementing such policy toward minors and consult any other relevant state laws.
• Working Papers. Many states require a designated school official issue working papers to a minor only after being satisfied that the working conditions and hours will not interfere with a student’s education or damage a student’s health. Certain states require that the school review the work papers in person. School closures, however, may impact a minor employee’s ability to procure his or her working papers. Some states are making an exception to this requirement. Employers must review relevant state guidance regarding such requirements and plan for delays in obtaining the requisite paperwork.
Additionally, if employers meet the requirements for minors returning to work, they should ensure each employee is properly supervised. One suggestion is to implement a mentor/mentee system where a seasoned worker is assigned a minor employee to supervise. This can assist management with alleviating the task of micro-managing its summer staff in this COVID-19 era.

The Bottom Line
This is only a general summary of the FLSA’s child labor restrictions. Because of more restrictive state laws, federal law might only be the tip of the iceberg. At a minimum, an employer should review its hiring and employment practices – including any relatively new return-to-work policies – with respect to minors and implement a process to ensure compliance with the FLSA and any applicable state laws. Employers should review the type of work assigned to employees and ensure minor employees are not assigned a prohibited activity.