David W. Garland and Denise Merna Dadika, Members of the Firm in the Employment, Labor & Workforce Management practice, were quoted in Law360, in “Wages, COVID-19 Tests Pose Hurdles as Employers Reopen,” by Vin Gurrieri. (Read the full version – subscription required.)

Following is an excerpt:

As states begin to allow businesses to unlock their doors, experts say that complying with wage-and-hour laws and administering COVID-19 tests on workers are two areas in which employers rushing to put the pandemic behind them are likely to stumble out of the gate.

Over the past week, several states have tentatively let segments of their economies reopen after weeks of restrictions that were aimed at slowing the spread of COVID-19. Those constraints forced many businesses to close or shift to telework, and left tens of millions of workers who weren’t deemed essential unemployed or working off-site.

But as businesses start ramping their operations back up, management-side attorneys caution that there are potential mistakes employers might make if they try to jump-start their businesses without adequate planning.

“The challenges that employers face vary by the industry in which they operate, the nature of their business, their location geographically [and] the nature of their workforce,” said David Garland, chair of Epstein Becker Green’s national employment, labor and workforce management steering committee. “So much of what [employers] are focused on is dependent on those particular factors.”

Changes to Exempt Status

While one of the primary issues employers faced as millions of workers shifted to telework was figuring out how to accurately record hourly workers’ time for pay purposes, the return of people to physical work locations also presents challenges involving salaried workers.

“There are a whole host of compensation and compensability issues that need to be evaluated as individuals are returning,” Garland said, mentioning workers’ exempt or nonexempt status and the content of any employment contracts as being among the things employers need to be mindful about. ...

Tests Present Assortment of Obstacles

Besides the question of whether workers should be paid for going through temperature screens or COVID-19 tests, there are other potential problems that await employers when it comes to trying to identify sick workers.

Denise Merna Dadika, co-leader of Epstein Becker Green’s health employment and labor industry group, raised a similar concern about COVID-19 testing. Employers considering such tests should be mindful of several things, including making sure they can obtain sufficient testing, making sure those who are providing the test are certified to do it, and ensuring that the tests are manufactured in a way that meets standards set by different regulatory agencies, she said.

“Then, if they’re going to [use] the test, they have to ask themselves, ‘What will the test show?’ [and] ‘How fruitful will it be?’“ Dadika said.

Meanwhile, if businesses have vendors whose workers regularly come to a worksite, Dadika said it behooves employers to contact those vendors to ask that they adhere to testing guidelines for that worksite. She said that puts the onus on the vendor “to do the testing or the temperature screening” and commit to “not let any of their employees enter [a] workspace if they have either failed the test ... or they’re symptomatic.”


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