Jeffrey (Jeff) H. Ruzal, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law360 Employment Authority, in “3 Ways to Manage Omicron's 'Volatile' W&H Woes,” by Daniela Porat. (Read the full version – subscription required.)

Following is an excerpt:

As the omicron COVID-19 variant leaves businesses scrambling for staff and struggling to stay afloat, employers should consider offering incentive pay to workers and should be transparent about scheduling and leave policies, attorneys say. …

Revisit OT and Premium Pay Policies …

The need to implement new safety procedures and rearrange staff because of positive omicron cases among workers can lead to unexpected overtime and premium pay wage obligations for those filling in. Employers must review those requirements, attorneys said. …

Some businesses may adopt a testing approach that requires employees to be tested on site before their shift, a safety precaution that could have wage and hour implications.

If a worker in that scenario tests positive and is then sent home, that may trigger certain premium pay requirements because "the individual, technically speaking, was ready, willing and able to work, showed up, was sent home for obviously good reason," said Jeffrey Ruzal, a member at management-side firm Epstein Becker Green.

It's a difficult balance to strike, Ruzal said, because from a business perspective an employer wouldn't want to automatically over-staff a shift to accommodate potential absences. That would cut into a business's bottom line just as premium pay would.

Under New York City's Fair Work Week law, for example, employees in the fast food industry must receive premium pay for any schedule changes within a 14-day window.

Rapid-testing of employees also raises still unresolved compensability issues.

Businesses who are conducting rapid-testing on-site need to be cognizant of the logistics of having workers getting tested and waiting for the results before their shift, Ruzal said.

"And if someone tests [positive] and they're sent home, well then what are you paying them for? And are you paying them at all?" he said.

Alternatively, employers can opt for a test-at-home approach.

Even then, however, if the business is in California or Illinois, those tests might be considered necessary business expenses subject to reimbursement, Ruzal said.

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