Guest Commentator: Jason E. Reisman, Partner & Co-Chair, Labor & Employment Practice Group, Blank Rome @BlankRomeLLP

What are some of the legal considerations employers should keep in mind while constructing a plan to reopen or return to work?

It goes without saying that return-to-work planning for employers can be daunting. There are an overwhelming number of issues to consider, not to mention the brand new safety and healthy guidance from the CDC in support of the “President’s Plan for Opening America Up Again,” issued just last week. (You can read the 60-page document here.)

Rather than attempt to address the milieu of issues associated with the next phase of this “adventure,” here’s a high-level look at two critical employment legal concerns that should be top of mind: (1) wage-and-hour pitfalls for “exempt” employees and (2) the obligations under the Families First Coronavirus Response Act (FFCRA). Why those two, you ask? Well, it’s always important to take care of your employees while ensuring risk minimization is front of mind – and short blogs are more often appreciated.

Pitfalls for Exempt Workers Returning:

  • Fair Labor Standards Act (FLSA) Refresher: To qualify as exempt under one of the FLSA “white collar exemptions” (for managers, certain administrative workers, and professionals), an employee must (1) receive a minimum weekly salary of $684, (2) be paid on a salary basis, and (3) perform required primary duties.
  • Beware: The economy is not motoring along yet, so many companies will ease back with reduced or alternative work schedules, accompanied by proportionate salary reductions.
  • Remember: To maintain exempt status – avoiding overtime pay obligations – you must pay the minimum weekly salary threshold of $684.
  • Point: If you plan to ease your workforce back by reducing salaries for exempt workers, make sure to evaluate continued compliance with the salary threshold requirement; otherwise, the employees will lose their exempt status, potentially subjecting you to an overtime pay class and collective action lawsuit, which is not a headache that any employer needs.
  • Primary duties risk: If you plan to keep costs down initially and start back to work with a team primarily of managers, who will be performing the functions normally handled by the non-exempt workforce, their exempt status may be jeopardized as well by virtue of a change in their “primary duty,” which is another class and collective action risk.

FFCRA Obligations for Employers with Less than 500 Employees:

  • FFCRA Refresher: Effective for the rest of 2020, the FFCRA creates two new federally funded emergency paid leave benefits in response to the COVID-19 pandemic: (1) up to two weeks of emergency paid sick leave resulting from one of six different pandemic-related reasons, including a required self-quarantine due to COVID-19 or having to care for an individual in self-quarantine; and (2) expanded Family and Medical Leave Act leave for up to 12 weeks, 10 of which are partially paid, to care for a child whose school closed or child care provider is unavailable, due to COVID-19.
  • Caution: Due to the number of temporary layoffs, furloughs, and shutdowns, many employers have not yet had to administer these benefits; but that will change.
  • What to do:
    • Implement and distribute a policy describing available FFCRA paid leave benefits.
    • Don’t be shy – know the six paid leave triggers and work with employees when one of them arises.
    • Document the leaves as required by the FFCRA to ensure the federal government pays for them.

Wow – that’s a lot to digest, yet only scratches the surface. For a comprehensive starting point, feel free to use the Blank Rome LLP return-to-work checklist, which you can find here. Good luck – stay healthy!

Blank Rome is a member of the Chamber’s Middle Market Action Team (MMAT), a consortium of leaders driving rapid growth in companies with annual revenues between $10M & $1B through targeted programs and strategies.

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