By Angela A. Cronk, Esquire
COVID-19 has shuttered the doors of almost every business office in the Northeast. Employers have furloughed employees and cut salaries to save costs. The non-furloughed employees are working from home. The state governments have started to issue multi-step plans to return employees to work, but with no exact dates. However, employers who are running non-essential business that have been shuttered should be developing a process of returning employees to their office buildings now.
Return to Work Committee and Plan
Executives, Supervisors and Human Resources officers should be meeting regularly to determine the process of safely and legally returning employees to the office in the face of the ongoing medical concerns and regulations from various local, state and federal governments. Every workplace has unique situations, including multiple offices in different states, and therefore, this serves as general advice to assist the process of returning employees to work.
- Identify an individual or committee to address specific workplace concerns prior to permitting employees to return to the office.
- Return furloughed employees to their previous positions, focusing on returning to normal operations as soon as possible, not terminating difficult employees.
- Review and compliance with all local, state and federal requirements. Consider designating an individual, such as the Human Resources Director, to monitor and report any changes to regulations and rules.
- Understand and recognize that the COVID-19 situation is fluid and employers and employees must remain flexible. Communication is key to helping both employers and employees manage their concerns.
The Occupational Safety and Health Administration (“OSHA”) recommends that all employers develop an Infectious Disease Preparedness and Response Plan. Employers should draft a written plan and, if possible, the plan should be included in the Employer’s Handbook. Also, a copy of the plan should be emailed to the employees in advance of their return to work so they know what to expect and plan accordingly. Request that employees respond with an email that they have read, understood and will follow the updated COVID policies. This is especially important if the employer decides to have employees self-report symptoms for themselves or family members, as opposed to taking more extreme measures of taking employees daily temperatures before they enter the office. Also, be prepared to include guidelines issued by your building landlord.
Returning Employees to Work
Many employers have furloughed non-essential employees. If employees have been furloughed in waves, employers should return those employees in the reverse order of how they were initially laid off. For example, if secretaries or assistants were laid off last, they should be returned first. However, if you have an employee who is needed immediately, make sure you have a valid reason that you can communicate for returning that employee. For example, a mailroom clerk may be needed immediately even though they were laid off first. If you have multiple employees of the same class, but cannot return all of that class, the employer should return the employee with the most seniority of that class first. As a reminder, employers should contact their insurance broker or insurance companies to advise which employees have been returned to avoid any lapse in benefits that may have occurred or may occur for furloughed employees.
Some recalled employees may indicate that they are unable to return to work. The employers should request the employee state in writing the reason that they cannot or will not return. Once the employer knows the stated reasons then a review of the Families First Coronavirus Response Act (“FFCRA” or “Act”) should be reviewed to determine if the stated reason is covered by the Act. The Act requires employers to provide paid sick leave or expanded family and medical leave for specific reasons related to COVID-19 through December 31, 2020. The Act provides, among other things, that an employer must provide paid sick leave to an employee who is unable to work because they must care for a child whose school or daycare is closed for reasons related to COVID-19. The Act clearly lays out the qualifying reasons and the employer’s responsibilities for compliance.
For example, under the Act, an employer must provide two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay if an employee is unable to work because of a legitimate need to care for an individual subject to quarantine, or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19.
If an employee states that they have a medical condition that will prevent them from returning to work, then the employer should engage in the “interactive process” under the American with Disabilities Act as Amended of 2008 (“ADAA”). The ADAA requires employers to engage in the “interactive process” with employees who have a disability regarding reasonable accommodations that will permit the employee to continuing working without risking their health. An employer is not required to make an accommodation if it would impose an “undue hardship” on the operation of the employer’s business.
If an employee refuses to return to work because they have concern of contracting COVID-19 and their refusal does not qualify under the Act or under the ADAA, consider extending the furlough so the employee can continue their benefits. If paying the employee’s benefits is cost prohibitive or the employee is essential for running the business, the employer should advise the employee that they cannot continue the furlough.
Confirm the employee’s refusal to return in writing and deliver the correspondence via certified mail stating either the furlough will continue for a specified period of time or the employee is refusing to return to their position. Instruct the employee to the state’s unemployment compensation website for more information. Since employers must report the refusal of an employee to return to a suitable open job that is offered, advise the employee in a non-threatening way that the employer has an obligation to report the refusal to return to work. An employee’s eligibility for unemployment benefits is decided by the state’s unemployment compensation board and is decided on a case by case basis. If the employee will remain furloughed, the employer should check with their insurance broker to determine if the employee’s benefits will lapse at some point and the employer should advise the employee accordingly in writing of those dates.
Keep in mind that employers and employees are in new and unchartered territories when it comes to COVID-19 and there are no written rules on what employers can and cannot do. Therefore, it is best to err on the side of the employee. Remember to work with an employee who has genuine concerns, problems or limitations. Be sure to consult the Act and adhere to the requirements of the ADAA. Also, many state unemployment compensation boards are posting guidance and therefore, a review of the state’s website should be completed on a regular basis.
It is important that employers continue to monitor the ongoing local, state and federal regulations regarding the workplace and COVID-19. Review CDC and OSHA guidance whenever possible. Be flexible with company sick and leave policies. Consult the FFRCA and ADAA to insure all leave and accommodations are followed. Communicate with employees so that are aware of the safety and health measures that have been implemented in the office.