By Arlene Switzer Steinfield

Law360 (June 23, 2020, 5:57 PM EDT )

Arlene Switzer Steinfield

As state restrictions on business operations are loosening, employers are faced with a number of issues to ensure that they bring employees back safely. It is unknown whether the method in which employers conduct their businesses may ever return to normal, but compliance with the myriad employment laws remains essential.

Apart from legal constraints, employer flexibility is key. Being open to new and innovative methods of conducting business will encourage employees to work productively, while feeling protected from unnecessary risks.

1. Selecting Which Employees Should Be Brought Back

If an employer is recalling workers gradually, employers must consider the order in which these employees should be brought back. If an employer expressly told employees about how recall selection decisions would be reached, it should make every effort to follow the announced criteria.

The same is true for any guidelines established by an employer in its employee handbook, even if the handbook contains a contractual disclaimer. This is because, in certain states, the failure of an employer to adhere to its own personnel policies may be evidence of discriminatory or retaliatory animus.

If the employer did not advise employees about the order of recall, the employer may certainly recall employees in a way that meets its business needs — e.g., job function, performance, knowledge of the employer's business operations. Employers should avoid any possible inferences of discrimination or retaliation in recall decisions by ensuring that a disproportionate number of employees in a protected class are not adversely affected.

There is nothing to prohibit an employer from asking for volunteers from its workforce to return to work. Although some employers might be tempted to recall younger employees, or employees without child care responsibilities, such actions could subject the employer to legal challenges. 

Employers who recall workers based on age, women with school-aged children, or a perception of disability risk a discrimination claim. Employers should leave the choice to the employee, and consider requests for a delayed return-to-work date based on a documented medical condition. 

Similarly, employees with child care responsibilities should be allowed to decide for themselves if they want to return to work. Employees may choose to take Families First Coronavirus Response Act family leave, if available. 

2. Recall Letters

There is no specific requirement regarding when advance notice of recall must be provided. If an employee has been furloughed or laid off with the expectation of being recalled, the employer should send the letter sufficiently in advance of the date when the employee is expected to return to allow him or her to make arrangements.

There are no specific legal guidelines for what an employer must include in a recall letter. However, an informative letter should specify the expected date of return, the position to which the employee will return, the hours of work, the pay rate, the benefits to be included, the employee's seniority date for purposes of leave and benefit accrual, and the employee's immediate supervisor. 

The letter should also confirm the employee's at-will status. Finally, the employee should be advised that he or she should immediately notify the employer if, for some reason, he or she cannot return to work on the expected date.

3. Guidelines To Be Consulted in Reopening the Workplace

Various government entities have issued orders and ordinances to address safety protocols and timetables for reopening the workplace, including but not limited to guidelines from the Centers for Disease Control and Prevention, state and local executive orders and ordinances, and the White House.

In addition, the federal Occupational Safety and Health Administration has issued guidance on preparing workplaces for COVID-19 addressing the safety procedures to be followed to satisfy OSHA's general duty clause and other applicable safety and health standards and regulations promulgated by OSHA.[1] Such authorities may require personal protective equipment, health screening, increased hygiene practices, and/or additional social distancing. 

CDC Guidance

In May, the CDC issued guidance on reopening workplaces. In its interim guidance for businesses and employers responding to COVID-19, the agency offered a series of items for employers to follow in planning to ensure that their offices are prepared for employees who return to work and in instructing its employees in interacting with others in the office.

Among those recommendations include conducting daily health checks, conducting a hazard assessment of the workplace, encouraging employees to wear cloth face coverings in the workplace, if appropriate, implementing policies and practices for social distancing in the workplace, and improving the building ventilation system.

The CDC advised a collaborative process between employers and employees about steps to be taken: "Talk with your employees about planned changes and seek their input. Additionally, collaborate with employees and unions to effectively communicate important COVID-19 information."

4. Pay and Benefits Upon Return to Work

Absent an employment contract or a collective bargaining agreement, an employer may generally alter the compensation and benefits that were provided to recalled employees prior to the furlough or layoff.

However, employees should receive advance notice of any changes in the terms and conditions of their employment. Employees may be returned to work on a reduced-hours schedule, but employers should make sure that their exempt status is not jeopardized by improper deductions from salary.

An employer may be prevented from reducing the salary during the pandemic where the contract states a specific salary and provides no exceptions when a salary may be reduced. Going forward, employers should consider including a clause that allows for pay reductions and the cessation of salary due to forces beyond the employer's control that have a substantial negative impact on operations.

5. Employees Who Prefer to Remain on Leave When Recalled to Work

An employee who refuses to return to work out of a generalized fear of contracting the virus may be deemed to have resigned.

Employees' requests to work from home for disability-related reasons should be analyzed on a case-by-case basis to determine whether a physical presence in the workplace is an essential job function or instead can be reasonably accommodated. The same standards and interactive process under the Americans with Disabilities Act apply, but employers and employees may now have additional information on the feasibility of remote work.

If an employee refuses to return to work because he or she prefers to receive unemployment compensation benefits, the employee may also be deemed to have resigned. In such instances, the employee may be disqualified from receiving further unemployment compensation.

6. Medical-Related Inquiries and Documentation

Employers may ask employees if they are experiencing COVID-19 symptoms, and may take their temperatures. Employers may also require COVID-19 testing, if the testing is accurate and reliable. All such information must be treated as a confidential medical record in compliance with the ADA.

If an employee states that he or she is not comfortable returning to work because of an underlying health condition, but refuses to disclose the condition, the employer may request documentation from the employee's physician to support that claim.

According to the U.S. Equal Employment Opportunity Commission, employers may request fitness-for-duty certifications from employees' doctors. Certain state laws may limit an employer's ability to require medical documentation, so employers should check to see if such state laws or local ordinances exist.

The EEOC has stated that COVID-19 viral tests are permissible. However, on June 17, the EEOC posted an updated technical assistance publication which stated that the EEOC does not currently allow employers to require antibody testing before permitting employees to reenter the workplace. 

7. Personal Protective Equipment 

Under the Occupational Safety and Health Act, the workplace must be free of hazards likely to cause death or serious physical harm. Consequently, personal protective equipment should be provided consistent with the level of risk in an employee's position. Such equipment may be a reasonable accommodation for disabled employees.

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Arlene Switzer Steinfield is senior counsel at Dykema Gossett PLLC.

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.osha.gov/Publications/OSHA3990.pdf.

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