Clearing Pandemic Hurdles as Employers Reopen

By Douglas Lipsky

As states begin allowing businesses to reopen, employers will face significant challenges on a number of fronts, including complying with wage-and-hour laws and administering COVID-19 tests to workers. The best way to navigate these challenging times is with the advice and guidance of an experienced employment lawyer.

Businesses Ramping Up Operations

While several states have begun reopening segments of their economies, the greater New York area is not yet at that point, but it will be instructive to see how businesses in other states operate once the constraints have been lifted. As millions of workers who have been furloughed or working offsite return to the workplace, employers must continue to classify their employees properly and compensate nonexempt employees for all hours worked plus overtime.

In addition, now that the Equal Employment Opportunity Commission (EEOC) and the Centers for Disease Control and Prevention (CDC) have given employers the green light to check employees’ temperatures before they are permitted to enter and testing workers for COVID-19 if necessary, businesses must ensure that necessary procedures, protocols, and safeguards are in place. 

Let’s take a look at some of the employment law challenges the pandemic presents:

Employee Misclassifications During the COVID-19 Crisis

As employers embraced teleworking for most office workers and other nonessential employees during the COVID-19 crisis, many have struggled to accurately record hourly workers’ hours for pay purposes, which may give rise to a wave of wage and hour claims. Now that some, but not all, employees are returning to their workplaces, businesses may face similar challenges with their salaried workers. 

While the Fair Labor Standards Act requires hourly (non-exempt) workers to receive minimum wages and overtime pay, most salaried employees are exempt from those requirements. If non-exempt workers who are recovering from or impacted by Covid-19 are slow to return,  employees who primarily perform managerial duties may be needed to perform non-exempt work, in which case their exempt status may be jeopardized. This means these previously exempt employees may be entitled to overtime pay, which gives rise to the potential of wage and hour claims.

Misclassification of Sales Employees

Another exemption that may be at risk is the overtime exemption for sales employees of retail or service establishments who receive at least half of their pay in commissions. This could be a high threshold to meet if sales continue to fall in the wake of the novel coronavirus pandemic.

The FSLA’s “outside sales exemption” may also fall prey to COVID-19 complications. To qualify for the exemption, an employee customarily must engage in sales activity away from the employer’s business. With sales employees making calls from home in lieu of face-to-face meetings, that location may be considered an employer’s place of business even if the employer does not own it; and those employees are no longer exempt from FLSA wage and overtime requirements as outside salespeople.

The Perils of Testing Employees for COVID-19

While employers can conduct temperature screenings and also test employees for COVID-19, doing so presents a number of challenges, not the least of which is trying to identify sick workers. In short, employers must be able to determine:

  • How testing would be conducted
  • Who would conduct tests
  • Which tests would be used
  • How they would access the test
  • Where the tests would be conducted
  • When they would actually conduct the test

It is worth noting that there are questions about the accuracy of various tests, and administering them to numerous employees presents a serious logistical challenge. 

Moreover, a COVID-19 diagnostic test only indicates whether a person is infected at that time, the individual could become infected with coronavirus later the same day. Ultimately, employers must be able to:

  • Obtain sufficient testing 
  • Make sure that test providers are certified
  • Make certain the tests used are manufactured according to regulatory standards 

The tests also raise questions about the privacy rights of employees, however, as well as the risk of their confidential medical information being misappropriated. Balancing these concerns with the need to protect the workforce and society at large is the overarching issue. In the end, employees who prefer to return to the workplace may need to consider COVID-19 screening or antibody testing, which is now being ramped up.

Why This Matters

Given how the COVID-19 pandemic has unfolded, the future is uncertain at best; however, employers about to reopen need to plan carefully — and adhere to the social distancing and other guidelines already in place. The novel coronavirus crisis also raises other serious concerns for employers and employees alike, concerns which are best addressed by experienced employment lawyers. When you turn to Lipsky Lowe LLP, we will be the strength in your corner, and we will get through this together.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.