When state and local governments ease COVID-19 restrictions,
employers must carefully plan when to bring employees back, who to bring back,
and how to safely reintroduce them to the workplace. Here are some guidelines
to consider.
When:
At a minimum, the decision to reopen must comply with
federal, state, and local orders and guidance. Review applicable directives to
determine whether you're permitted to resume operations. In many places, the
return to work process is occurring in phases with certain types of businesses
permitted to resume limited operations before others are allowed to do so.
Employers may be required to meet certain requirements when reopening, such as
providing employees with protective equipment, training staff, posting notices
and/or submitting a return to work plan to demonstrate that they've implemented
appropriate protocols to allow for a safe reentry. If conflicts exist among
directives and guidelines, consider consulting legal counsel.
To the extent possible, employers should allow employees to
telework, considering which employees can continue to work remotely. Even where
employers are permitted to allow employees back into the workplace, they should
independently assess whether it is safe to do so. Consider the potential risk
of transmission in your workplace and safety protocols that you can implement
in order to limit the risk, such as enhanced cleaning practices and social
distancing measures.
Who:
Even when employers are permitted to reopen, they may be
unable to bring back all their employees at first. For instance, there may be
state or local restrictions on the number of people allowed in the workplace,
social distancing requirements may limit the number of workers that can be in
the workplace safely, or the employer simply won't have enough work for all
employees.
Determining who is most critical:
Employers should consider having employees return to work in
waves, starting with the most critical workers first. Identify the positions
that are most necessary to resume operations. Make sure all decisions related
to bringing back employees are neutral and job-related. For example you might
choose to bring back workers based on business need, seniority, performance, or
job classification. Document your objective, job-related reasons for
determining which employees to call back to work and when.
Ensuring nondiscrimination:
Never base employment decisions on protected
characteristics, such as age, race, pregnancy, disability or other factors
unrelated to the job. Employers may have questions about bringing back
employees who they know have a condition that puts them at higher risk from
COVID-19. Keep in mind that the EEOC has stated that an employer may not
exclude an employee – or take any other adverse action – solely because the
employee has a condition potentially placing them at "higher risk for
severe illness" if they get COVID-19. For more information, see question
G4 in the EEOC guidance here.
Employers should also avoid making decisions about who to
bring back based on whether the employee may use or has used leave to which
they are entitled under federal, state, or local law.
Maintaining staffing levels for PPP loan forgiveness:
Loan forgiveness under the Paycheck Protection Program (PPP)
is another factor to consider when recalling employees. Employers that receive
a PPP loan may be eligible for forgiveness of the loan if they meet certain
criteria, one of which is maintaining staff levels.
To determine whether adequate staffing levels have been
maintained, employers must compare their staffing levels from one of two time
periods with that of the eight week period following the date of the loan. If
the number of full-time equivalent employees during the eight week period is
lower, the amount of loan forgiveness may be reduced proportionately. However,
reductions in staffing occurring between February 15 and April 26, 2020 will
not be considered in reducing the loan forgiveness amount if they are reversed
by June 30, 2020.
Note: The Small Business Administration has issued guidance
to make clear that, as long as the company made a good faith, written offer of
rehire at the same salary/wages and for the same number of hours, the employee's
rejection of that offer will not result in a reduction of the company's loan
forgiveness amount. In such cases, the company must document the employee's
rejection. Also, employees who are terminated for cause, voluntarily resign, or
voluntarily request and receive a reduction of hours may also be excluded from
the reduction calculations.
Employees who are reluctant to return:
When you are ready to reopen, you may face employees who are
reluctant to return to the workplace due to safety concerns. It's important to
communicate the steps your company is taking to maintain employee safety, such
as increased cleaning, providing personal protective equipment, and mandating
social distancing. You may also want to consider having employees voluntarily
return to work at first.
Employees who ultimately refuse to report to work may have
protections from adverse action. For example, under the Occupational Safety and
Health Act, employees may have the right to refuse to work if all of the
following conditions are met:
Where possible, they've asked the employer to eliminate the
danger, and the employer failed to do so;
They genuinely believe that an imminent danger exists;
A reasonable person would agree that there is a real danger
of death or serious injury; and
There isn't enough time, due to the urgency of the hazard,
to get it corrected through regular enforcement channels, such as requesting an
OSHA inspection.
Section 7 of the National Labor Relations Act (NLRA), which
grants employees the right to act together to improve wages and working
conditions, may also come into play in this situation.
Employees may also have certain rights under state and local
COVID-19 orders and/or may be entitled to leave under federal, state, and local
leave laws. Or the employee may be hesitant to return because they have an
underlying condition and have legitimate health concerns about returning to
work.
Alternatives to Layoffs:
If you are facing a situation in which there simply isn't
enough work to bring back all your employees at their regular hours, there may
be alternatives to layoffs. For example, many states have a Shared Work
Program. These programs generally allow employers to reduce employees' work
schedules during business slowdowns such as the COVID-19 crisis while
supplementing workers with unemployment benefits for the reduction in work.
Layoffs:
If you determine you will have to permanently reduce the
size of your workforce, make sure you follow federal, state, and local rules
regarding advance notice, nondiscrimination, benefits continuation, and
unemployment insurance.
How:
Notifying employees:
Consider sending recalled employees a letter explaining the
timeline for reopening, what steps you are taking to protect them from
COVID-19, and a deadline for them to confirm that they will return. Include the
terms of employment, highlighting any changes in pay, benefits, leave, policies
or procedures, contact information for questions, and an at-will employment
statement.
Reasonable accommodations:
The ADA and similar state laws require employers to provide
reasonable accommodations to individuals with disabilities, unless doing so
would impose an undue hardship on the employer. An employee with a disability
that puts them at high risk for complications from COVID-19 may request a
reasonable accommodation to reduce their chances of infection, such as asking
to telework, for personal protective equipment, or for paid or unpaid leave if
their job isn't conducive to telework. Additionally, if the employer requires
employees to wear protective equipment, an employee with a disability may ask
for an accommodation if they are unable to comply because of their disability.
Respond to such requests in compliance with applicable laws.
Leave requests:
Employees may be entitled to leave under federal, state,
and/or local law, which may complicate the return to work process. While
certain leave requirements were in place long before the COVID-19 crisis, other
leave laws were enacted in response to COVID-19. For instance, under the
federal Families First Coronavirus Response Act (FFCRA) if an employee is
unable to work because their child's school is still closed, they may entitled
to up to 12 weeks of job-protected leave. The FFCRA also permits paid leave for
additional COVID-19 related reasons, and a number of states have their own
COVID-19 related leave rules. Review all applicable federal, state, and local
leave rules to ensure compliance.
Notices:
Various laws require that employees complete certain
paperwork and employers provide certain notices at the time of hire. Some
address situations in which an employee is returning after a furlough or
layoff. For instance, an employer won't generally need to complete a new Form
I-9 (to establish identity and work authorization) if the worker is continuing
in their employment following a temporary layoff for lack of work. If this
standard cannot be met, the employer must follow the instructions for "rehired"
employees in the USCIS Handbook for Employers. For other new hire paperwork and
notice requirements, check your applicable laws to determine whether there's an
impact on employees returning to work.
Conclusion:
Follow applicable guidelines and orders and develop a plan
for when, who, and how to return employees to work safely. Guidelines for
returning to work continue to evolve.