Recalling the Workforce: A Need-to-Know Overview
Recalling the workforce is complicated and a bit of a moving target as the details and requirements will vary by state, county and perhaps even city. Therefore, it is of paramount importance that employers are aware not only of the federal positions but also the state and local positions. In some instances the variations are vastly different and can be extremely specific.
A first important step in recalling your workforce is to establish a return-to-work advisory team, consisting of members from HR, IT, Property Management, Legal, Government Relations and perhaps others, depending on your specific business. Unlike the information we typically receive from the government – very formal, specific, black and white – many government agencies that are issuing guidance on recalling the workforce have emphasized the importance of creativity and flexibility. But COVID-19 is presenting us with a unique situation. Therefore, your return-to-work advisory team must be collaborative in coming up with a response that is best for you organization and your employees, focusing on the overall goal of providing a safe workplace.
As you start recalling the workforce, download our guide Managing Through COVID-19 & Beyond: HR, Benefits & Compliance Roadmap for Employers. It addresses the most urgent matters businesses must take action upon to survive and remain in business, while also supporting and prioritizing their employees and maintaining legal compliance.
The Remote Workforce
In some instances, remote employees will move back into the office, while in other situations it may be best for them to continue to work remotely, or, perhaps, a combination of both. This will depend on the nature of your business, your workforce and your facility’s capacity to meet all return-to-work requirements.
Furloughed or Laid-off Employees
There is no formal definition of either of these terms. However, a common definition of a layoff is termination of employment, while a furlough is typically a reduction of hours or an unpaid leave of absence with the intent that these employees will come back to work. These two statuses will affect what you have to do when you bring these employees back.
Considerations for Recalling the Workforce
When deciding who to recall and when, the overarching principal is that all of the discrimination rules continue to apply:
For anyone protected by Americans with Disabilities Act (ADA):
- Must meet essential functions of job, with or without reasonable accommodation
- Engage in interactive process
- Distinguish between “discomfort” with return to work and being protected under ADA
- Job Accommodation Network (JAN)
As always, it is important to have a clearly communicated anti-harassment policy. Now would be a good time to review and update your policy as appropriate.
For a step-by-step workplace preparedness plan, check out this guide for employers as you manage through COVID-19 and beyond.
Benefit Plan Implications
- Be aware of benefit plan eligibility standards, including:
- Review eligibility standards in all welfare benefit and retirement benefit plans
- Furloughed vs. Laid-off Employees: For example, are they deemed to be new hires?
- Will there be an impact on waiting period and the like?
- The ACA 13-week (26-week for schools) break in service rules
- Consider cafeteria plan issues, including:
- If returning from a Leave of Absence (LOA), what payment method is used?
- Will there be catch-up contributions?
- If more than a 30-day break in service, will new elections be permitted?
Review of Workplace Policies
- Review and update existing employment policies, such as paid time off and anti-harassment policies, as necessary.
- Be aware of FFRCA that allows two new emergency leaves. Just because employees have been absent, when you bring them back, they could be entitled to emergency-paid sick leave or emergency-paid family leave (this year) if they have not used them yet.
- Create new policies addressing hygiene, social distancing and any other relevant workplace policies to employees. Communication will be crucial to the effectiveness of these policies.
Because of the variations that companies will experience when recalling their workforces due to location, industry and the like, it is important that your organization works closely with your trusted advisors in HR, legal, benefits and other critical roles.