While no one knows when the local, state, and federal governments will allow all employees to return to the office and conduct business as “normal,” we do know that at some point in that future that will occur. Anticipating now the issues you’ll face as you consider bringing back employees is critical to ensuring a smooth transition.
When and How to Bring Back Current Employees
The first thing to begin planning is when and how to bring back your current employees. This will include deciding whether your employees that are working from home currently will continue working from home or whether you will stagger the return or have all employees return at the same time. From a legal perspective, you need to remember you still have a duty to provide a safe workplace. The CDC will likely still have recommendations regarding social distancing, hand washing, and even, potentially, masks for people going back to public settings. At a minimum, employers should provide a written statement to employees reminding them of the CDC’s guidelines to restrict potential spread of COVID-19. This should include a statement to wash hands, use hand sanitizer, and cough or sneeze into your elbow. Further information is available from the Department of Labor regarding OSHA safe workplace recommendations.
With the staggered return, you can consider alternating days in which certain staff are physically in the office versus working from home. The idea is to build in social distancing by limiting the number of employees physically in the office. To provide evidence of your efforts to provide a safe workplace, in the event you do not choose a staggered return, you may want to consider possibly rearranging the office to provide some distancing between workspaces.
Another concern to think about regarding when and how to bring back your current employees, is that there likely will be some employees who (1) have safety concerns with returning to the office, (2) may have childcare issues, or (3) are caring for a family member who is still sick from COVID-19. For the second and third issues, if the employee has not exhausted their leave entitlement under the Emergency Paid Sick Leave Act or the Emergency FMLA Expansion Act, then you’ll need to analyze whether the employee is qualified for leave under either law. If the employee does not qualify or has already exhausted his or leave, you should follow your policies regarding unpaid leave and apply the decision to give or not give in a non-discriminatory manner.
As to the ongoing safety concerns, this analysis should be done on a case-by-case basis. Take the approach that you don’t want to “force” an employee to work in a condition they find unsafe. In general, you should outline the safety measures and precautions you have put in place, explain why they are needed in the office, and then, if possible, allow them the option to take unpaid leave or utilize any remaining PTO. While you need to be mindful to not retaliate against an employee for complaining or notifying you of a safety concern, you likely can terminate an employee who is unwilling to work if you have taken appropriate steps to provide a generally safe workplace. You should consult an attorney before taking that measure, though.
It is also important that as you decide to bring employees back (in the event you choose a staggered return option), do not make your decisions in any discriminatory fashion. This means you should avoid bringing back the “young” employees versus the old and other protected category-based decisions. One way to resolve this is to make your decisions based on work need, the critical nature (or lack thereof) of positions, and lack of COVID-19 symptoms or associations with individuals who have symptoms.
When and How to Bring Back Furloughed/Laid Off Employees
For employers who have furloughed or laid off employees, you will need to consider who you bring back and when. Obviously, the same considerations and advice addressed above regarding bringing back current employees will apply to the furloughed employees you bring back. While many, if not most, employers likely had the intention of bringing back their entire workforce, the economic realities of the impact or length of the pandemic may have changed the employer’s ability or desire to bring back the full workforce. In this situation, employers should be mindful of discrimination and retaliation claims if you are not rehiring all employees. Make sure you have a non-discriminatory criteria for which employees you retain and which you do not.
Employers should also be mindful of any retention/rehire contingencies associated with the Payroll Protection Plan loans, if applicable.
