There are several legal considerations as employers gear up to open their doors as states begin to relax their stay-at-home orders.
Choosing which Employees to Rehire
When it comes to making decisions on whom to bring back to the workplace, reviewing which jobs need to be done in-person, and when, might be the first step for your organization. Create an approach and pay attention to the pitfalls:
- The first step of this approach is to determine which positions are needed for business reasons. If there is only one person in a position that is not required, laying off or continuing to furlough the position typically would not create undue risk. If you have more employees than needed for a position, determining whom to bring back creates an immediate risk of discrimination. Seniority is always a safe harbor. If you wish to use merit instead, you will need a process that is as objective as possible. Performance evaluations that accurately indicate past performance can be used; unfortunately, those are not always common.
- Avoid discrimination. For example, not bringing back older or pregnant workers because they are older or pregnant is discrimination, even though the motivation may be to protect those workers. Instead, employers should stick to an objective approach for determining who should return and then reaching out to those workers to find out if there is a reason they cannot or will not return.
- Employees may be afraid to come back to work. Be cautious and deliberate in bringing back employees to the workplace slowly and safely. Employees with COVID-19 concerns at home may have legal protections under the FFCRA, FMLA, or the ADA.
- Employees may ask to be laid off or furloughed. If they do and you agree to that, those employees are likely to file for unemployment benefits. If you wanted volunteers for layoff or furlough because you needed to cut the number of staff, they would likely be entitled to these benefits.
- You will need to determine if the WARN Act applies and if there are state laws that add to the federal requirements. Even if you cannot provide six-weeks’ notice to employees of a reduction in force that is within the parameters of WARN, because you could not have anticipated the need for a reduction, you will need to give notice as soon as you have information. Our WARN FYI is helpful.
Changes to Employees’ Hours and Schedules
Employers should expect that they will need to expand or diminish an employee’s hours, work, or the employees’ schedules. Schedule changes can be made due to business reasons or to operate in a safe environment. (See Operations in the Workplace below.) Reviewing these plans in light of legal requirements is essential:
- If you are expanding hours, review any state law to see when overtime must be paid. In Colorado, for example, overtime must be paid after 12 hours in a day. Also, if an employee leaves because they cannot work the expanded hours, they may be eligible for unemployment, depending on the circumstances. Finally, if employees cannot work those hours due to child care issues, and the employer is covered under FFCRA, payment of two-thirds of the employee’s wages may be a requirement.
- If you are reducing an employee’s hours, check to see if any exempt employee’s salary will fall below $684 per week. If so, you will need to convert the exempt employee to an hourly employee for the workweeks that the employee earns less than $684 per week or more in states where the salary basis is higher. Most states also allow any employee to file for unemployment if hours drop below a particular threshold, and you may want to explain this to employees if you are cutting their hours. Currently, under the CARES Act, employees are entitled to $600 per week if they qualify for unemployment.
Entering the Workplace
Employers will want to keep employees safe when they enter the workplace. While recommendations continue to change, most employers want employees to know that they are not working next to someone with the virus. The conversation around testing has increased to the point that the EEOC has issued guidance:
- Asking employees whether they have any symptoms of the virus, especially if they call in sick, is acceptable.
- While testing for the virus is ideal, medical professionals have urged indirect testing, including temperature testing. Tests must be done in a non-discriminatory fashion. Employers must either test all employees or test all employees who would be subject to exposure from one another or customers in the workplace. Any of the data gathered through testing should be monitored and protected.
- To learn how to take temperatures, this video is helpful.
- Virus testing is now allowable. It also must be done in a non-discriminatory fashion, testing everyone in the same or similar position. A review of the EEOC guidance is to determine if the tests you administer are protected. Currently, there has been no guidance on antibody testing.
- Once the employer knows there has been exposure in the workplace, it could well be that they have a duty to warn other employees. This duty to warn is made more complicated by the duty not to disclose the identity of any individual employee who appears to be or is ill from COVID-19. Most employers provide information about the locations the employee was in or the equipment he or she had access to warn others without disclosing anyone’s identity.
Operations in the Workplace
It is critical to have safe operations in the workplace.
- OSHA has specific guidance on preparing workplaces for COVID19. The CDC recommends social distancing, masks, hand washing, and other measures. Reviewing their guidance is helpful as certain documents target industries and particular circumstances. Continuously inform employees about these precautions. Check to see that employees are following all precautions.
- Follow state, county, and city orders concerning how to ramp up returning to your workplace. The state websites for Arizona, Colorado, and Utah and other states have information to describe their orders. Cities and counties may have different timelines than the states’.
- To keep employees apart, you may want to move physical locations within an office, allow any employee who can continue to telecommute, or stagger schedules within the day or the workweek. You should research suggestions and options on state health, CDC, OSHA, and other websites. Consider all options and poll employees for their ideas and ask what they are most concerned about.
We hope that this article is helpful to you as you move toward planning your reopening. Members with further questions or concerns are free to contact us. Our Coronavirus resource site is updated regularly.