June 10, 2020

Navigating Employment Issues in the COVID-19 Normal

There’s no denying things are different everywhere we look, and the workplace is no exception. As a result, employers have no choice but to adjust and adapt in order to protect their employees and their business and to stay in compliance.

Considerations for Recalling Employees

Generally, how to regulate a business’ day-to-day operations during the COVID-19 pandemic has been left up to state and local officials. Therefore, when developing a plan for recalling employees, it is essential to first research your state and local requirements. And, multistate employers must be sure to do so in all states in which they operate.

Then, ensure that you’ve considered a rational basis for doing so and develop a plan based on legitimate, non-discriminatory reasoning.

Before you decide which employees you will bring back:

  • Review and follow your company’s layoff and/or recall policies.
  • Be mindful of promises or guarantees made by managers when furloughs or layoffs were being implemented.
  • Examine written communications made to furloughed or laid-off workers to ensure your company is acting consistently with representations made.

Avoid bringing back employees in a discriminatory way. You cannot:

  • make employees 65 years old or older wait longer than others to be called back.
  • make employees who earn the most money wait longer than others to be called back.
  • bring back pregnant employees after all other employees.

Addressing Employees Who Are Hesitant to Return

  1. Understand the reason(s) why employees may not want to come back:
  • Fear
  • Health conditions that put them at high risk
  • Unemployment compensation
  • Need to care for others
  • Etc.
  1. Make returning voluntary at first, if possible:
  • Removes pressure
  • Less employees at the workplace may help with implementing safety procedures such as physical distancing
  1. Check state-specific legislation and regulations. Examples of variations:
  • Texas Workforce Commission, for example, recently issued guidance that permits certain “high-risk” workers to remain on unemployment if they refuse to return to work.
  • In Iowa and Georgia, workers can lose benefits if they refuse to return to work.
  1. If employees absolutely refuse to return because of fear, try to work with them:
  • Suggest they use vacation or PTO.
  • Advise them of and document accommodations offered (Plexiglas, one-way aisles and hallways, tables and barriers to help with social distancing, staggered shifts, etc.).
  • Be consistent in your approach with all employees.

Generally, fear of contracting or being exposed to the disease is not a qualifying reason for leave under the Families First Coronavirus Response Act or other federal or state laws. Therefore, if you cannot agree on a solution with the employee and they refuse to return because of fear, the employee may be terminated. However, it’s always wise to confirm with legal counsel.

Handling Employment Issues in the New Normal

Americans with Disabilities Act (ADA)

  • The notion that regular attendance at the workplace is an essential function for most jobs may no longer apply.
  • Employers may need to consider a new perspective on the ability to work from home, flexible schedules, additional leave, etc.
  • Employers should reevaluate their positions and the job descriptions that go with them.

Wage & Hour Issues

  • Be aware that with decreased staff at the workplace, managerial exempt employees may be called upon to perform a substantial amount of non-exempt work. Therefore, employers must think through work assignments to avoid misclassification claims.
  • Employers that screen employees for COVID-19 symptoms before work begins may be required to pay employees for time spent waiting to report to work and waiting for the pre-shift health assessment.

Harassment Issues

  • Employers have to be even more diligent to prevent people from being harassed or singled out because of a protected classification.
  • Pay extra attention to the possibility of harassment of employees of Asian descent, resulting from reported Chinese origins of COVID-19. Take steps to prevent this.
  • Consider using this time to conduct online or in-person anti-harassment training.
  • Do not erect Plexiglas barriers for some employees and not others.

Trying to Do the “Right Thing”

  • Notwithstanding government guidelines for high-risk employees, recent EEOC guidance states that employers cannot prevent employees from returning to work because the employer wants to protect them (for example, older employees, those considered high risk).
  • Employers must perform an “individualized assessment” of accommodations to be made.

For more information on navigating the new normal, download our guide, Managing Through COVID-19 & Beyond: HR, Benefits & Compliance Roadmap for Employers. Topics include: workplace preparedness checklist, benefit plan regulatory relief updates, employee benefits considerations, a 3-month plan for returning to a better normal, and much more.

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