Labor & Employment
Once you’re ready to bring back employees to the office, how will you decide who to bring back and when?
Generally, the return of the workforce will likely occur in a phased approach. As a business, it is imperative that you consider the following issues to develop a thoughtful and impartial approach to regaining your workforce:
- Will you ask for volunteers or select employees based on their role in the organization?
- Given state and local return to work orders, are there operating limitations to the number of people who may return at the same time? Who are the key employees/executives who must return first?
- If your business has obtained a Payment Protection Program loan, how do the loan use requirements provided under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) impact who should return if you plan to apply for loan forgiveness?
- If employees are only returned on a part-time basis, will employees benefit more financially by remaining out of work in the short term, rather than returning to work on a part-time basis and potentially becoming ineligible for supplemented federal unemployment benefits? For example, given the additional federal relief under the CARES Act, employees in California that make less than $54,000 annually may qualify for more pay per week through unemployment benefits than if they work reduced hours. Each state, however, has its own weekly income threshold, and thus this is a highly individualized analysis.
How do you develop the selection criteria for who returns?
- Base decisions on the operational needs of the business.
- Make sure all decisions are consistent with business justification.
- Ensure decisions are transparent.
- Document neutral decision-making procedures in writing to avoid disparate treatment and impact claims.
Can you develop selection criteria to protect vulnerable populations?
- NO! This could subject you to discrimination claims.
- You must base return to work decisions on neutral, legitimate, non-discriminatory factors to avoid exposure to discrimination claims.
- You cannot base decisions on who is at greater risk for contracting COVID-19. This means, you cannot delay a return to work date for employees 65 years of age or older, those with underlying health conditions, or employees from particular ethnic groups reportedly impacted by the virus in greater numbers than other ethnic groups.
- BUT, once decisions are made, based on non-discriminatory factors, the EEOC has advised that, “higher risk” employees may request reasonable accommodations (See D.1). If such requests are made, you should engage those employees in the interactive process, to determine if reasonable accommodations are possible without undue hardship. Employees’ requests could range from postponing their start date, taking extended leave, requesting additional safety gear, etc.
- You must consider applicable recall rights under a collective bargaining agreement or other local ordinances. This may apply even if the workforce is not unionized. For example, the Los Angeles Board of Supervisors recently adopted an ordinance which gives janitors, maintenance workers, security guards and hospitality industry employees a “right of recall” to jobs from which they were laid off during the coronavirus crisis.
For additional information on how to prepare your business for re-opening in a safe and compliant manner, please contact Rhonda Nelson at firstname.lastname@example.org or Tara Mohseni at email@example.com.