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Law360 (May 6, 2020, 4:28 PM EDT )
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| Michael Hepburn |
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| Deepa Menon |
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| Bonnie Burke |
These considerations should be taken together with any directives, orders or guidance issued by applicable federal, state and local governments that also apply to the reopening of businesses and return of workforce.
Return of the Workforce
The pandemic has impacted a significant number of workers through government-regulated shutdowns, temporary furloughs and terminations. Once governments lift restricting orders, employers may have significant latitude in determining when and how to open their doors to their employees.
Employers should decide whether they are bringing back their entire workforce or will stagger the employees by department, shift or otherwise to allow for the potentially slow return of business, as well as social distancing and implementation of other safety measures. Recalling an entire workforce at once may quickly test (and possibly strain) any new safety procedures, so employers may want to consider a soft reopening. Recalling just a portion of the workforce, however, carries other risks.
The chief concern of recalling select employees — whether for purposes of testing new procedures, or reopening certain departments or services — is the risk of potential disparate treatment. To help avoid such claims and defend their choice of returning employees, employers should evaluate the business rationale behind the selection process and ensure that the process is compliant with anti-discrimination principles. Additionally, employers may wish to engage in a disparate impact analysis to ensure that facially neutral policies do not inadvertently have a statistically significant adverse impact on any protected class.
Some employees may request not to return to work (or the workplace) because they are uncomfortable with the safety implications or continue to have child care issues. Employers should visit their policies to determine their response to such requests, and consider whether noncritical employees will be allowed to continue the status quo.
In doing so, employers should also be cognizant of any implications under the Americans with Disabilities Act, including whether the employee's reason amounts to a disability and whether the provision of a reasonable accommodation will allow the employee to delay their return to work.
Recall as well that any newly required posts, such as those under the Families First Coronavirus Response Act and the Coronavirus Aid, Relief and Economic Security Act, that may have been transmitted electronically to employees working remotely may need to be added to physical locations where required posters are typically hung.
Return-to-Work Communication
Communicating when and how employees will return to work will be helpful for a smooth return to business. Employers should consider giving written return-to-work notices to avoid potential disputes with respect to unemployment claims, to set forth any necessary changes to employment terms going forward, and to avoid confusion (particularly where employees may return in staggered waves).
Generally, a return-to-work notice should set forth the date of return, any requirements with respect to equipment allotted to the employee for remote work, new policies that are applicable to the employee, changes to terms of employment (including pay and hours), language affirming the at-will nature of employment, any safety measures that employees should expect to encounter, and a reminder that sick employees should stay at home.
Further, employers should consider that communication sent to furloughed employees (i.e., those forced to take unpaid leave) may need to be different from the communication sent to (temporarily) terminated employees since the conditions under which they took their leave from work likely differ. Failure to differentiate between the notices may confuse returning employees and could trigger claims such as breach of contract or failure to provide notice under the federal Worker Adjustment and Retraining Notification, or WARN, Act or equivalent state law.
If employees will continue to work under the terms of an existing employment agreement, the communication should be customized to reflect this. Employers should be cognizant of any union considerations when notifying unionized employees, and comply with any process requirements mandated under the collective bargaining agreement.
Timing Considerations
Employers will need to be aware of the various stages of reopening under state and local laws when making decisions to return their employees to the workplace. Employers should consider all necessary safety protocols prescribed by state law, the Centers for Disease Control and Prevention and the Occupational Safety and Health Administration are in place before allowing employees to return to the workplace.
Employers should consider any benefits or assistance they have taken from the various COVID-19 relief laws and the impacts of those benefits on their workforce. For example, employers who have received checks under the Paycheck Protection Program of the Coronavirus Aid, Relief and Economic Security Act and have reduced their headcount between Feb. 15 and June 30 must restore their headcount to avail themselves of the loan forgiveness program.
Additionally, extending a furlough (even to less than all furloughed employees) may trigger notice requirements under the federal WARN Act or state mini-WARN Acts. Some states have allowed for exceptions to the notice requirement, nevertheless, employers should provide notice as soon as required in each state to avoid noncompliance.
Other implications related to timing may include any obligations triggered under union agreements, movement restrictions under city and local ordinances, and individual employment agreements.
Changes to Employment Terms and Conditions
Economic considerations due to the pandemic have caused many employers to change employment terms for returning employees, including reduction in base pay and/or hours, changes to bonus amounts, shift allotments, and changes to workplace policies. While these decisions were likely driven by legitimate business decisions, employers should be mindful of legal considerations as well.
The U.S. Department of Labor has issued some key concerns[1] to keep in mind under the Fair Labor Standards Act. In addition to these, however, employers are encouraged to consider the following:
- Will the reduction in compensation or hours amount to a breach of any employment agreement or trigger good reason for the employee to terminate the agreement?
- Does the employer have any contractual or regulatory obligations with respect to notice?
- Is the facility unionized? If so, what is required under the collective bargaining agreement?
- Will the reduction in pay result in disqualification of any employees for an exempt status under the FLSA or state law requirements for exemption?
- Do any employee benefit plans have work-hour requirements that could be negatively impacted if employee hours are reduced?
- Do states in which the employer has employees have notice requirements related to a reduction in pay, hours or benefits?
- Does the employer have equity agreements with employees that should be revised, and will such changes have tax implications?
- Will the change in pay or position have any immigration implications?
Terms and conditions may vary based on state and local laws, individual agreements, industry standards and market demands, so employers should be sure they have considered all issues.
Workers' Compensation Claims
Returning back to work may also raise workers' compensation claims, as employees may claim that they contracted COVID-19, or another infection, in the workplace. While the resolution of such a claim would be fact-specific, some states have issued laws providing additional protections for emergency responders, and health and child care workers.
Workplace Safety
To assuage employee concerns regarding workplace safety, employers should consider implementing the relevant policies and safety procedures. The U.S. Equal Employment Opportunity Commission has provided guidance giving employers significant latitude to implement such measures without being in violation of the ADA. Additionally, OSHA has provided workplace safety guidance[2] for employers.
Employers may consider measures such as: providing greater workplace cleaning and sanitation; requiring all entrants to facilities (including employees and visitors) to fill out a self-declaration form stating that they are free of any COVID-19 symptoms; enforcing social distancing requirements at work; mandating the use of personal protective equipment; implementing staggered shifts to avoid greater population density; or implementing an on-site body temperature measuring protocol.
Employers should ensure compliance and uniformity of application of these measures by putting in place policies that detail the safety protocol and assuage any concerns regarding confidentiality of information. Generally, any medical information obtained as part of the safety protocol should be kept confidential, and the data should be maintained separate from personnel records in accordance with applicable law and company policy.
Employers should also consider how they will handle sick and at-risk employees. Employers may choose to mandate that any individual who exhibits symptoms of COVID-19 and/or has an elevated body temperature shall not be permitted to enter the facility or may be sent home. Such individuals may be allowed to seek reentry to the facility when he or she produces a fitness certificate or when the individual meets the recommendations set in place by the CDC or local health authorities at such time.
Appropriate return-to-work documentation should be guided by recommendations put forth by the federal and state government, CDC, OSHA, the EEOC and local health authorities. Therefore, the related policies should provide that employers have the right to update these policies in accordance to such guidance. Employers may want to avoid policy language that is too rigid and does not allow employer flexibility.
Employers should plan carefully for the return of their workforce and implement the additional policies and precautions necessary to ensure the safety of all. Planning and executing this return, however, can be fraught with legal issues and dangers. The considerations posed here are just some of the issues, but many more exist and may relate to specific industries and locations.
Michael Hepburn is a partner, Deepa Menon is an associate and Bonnie Burke is a staff attorney at Eversheds Sutherland.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.dol.gov/agencies/whd/flsa/pandemic.
[2] https://www.osha.gov/Publications/OSHA3990.pdf.
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