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Recommended Steps to Bring Employees Back to the Workplace

May 4, 2020

With federal and state governments’ contemplation of plans to reopen the economy, employers should begin considering necessary and recommended steps to bring employees back to the workplace, and legal issues raised by doing so.

Governmental Guidance and Directives  

Federal, state, and local governments are expected to continue and even expand health, safety and social distancing protocols and requirements for reopening/restarting operations. Employers looking to reopen must consider whether the states and local governments in which they operate have any restrictions for the reopening workplace. Employers should examine the following questions:

Employers should stay current on the guidance, as well as any rules and regulations, by public health and administrative agencies. These include the Centers for Disease Control and Prevention, the Occupational Safety and Health Administration, the Equal Employment Opportunity Commission, the U.S. Department of Labor, as well as equivalent state and local agencies.

Workplace Preparations for Reopening

TIMING

There is no one-size-fits-all answer as to when employers can or should reopen.  Reopening, however, should be done gradually (e.g. in phases), as recommended by the White House in its Guidelines for Opening Up America Again. Many factors need to be taken into consideration in deciding when to recall employees back to work, including not only governmental guidance and the status of COVID-19 spread in the community, but also employers’ level of preparedness. 

Employers should consult with experienced employment counsel to consider and decide upon the following questions:

COMMUNICATION

Effective communication is essential to ensure a smooth transition from workplace closure to reopening. Communication about health and safety requirements, as well as employee rights and obligations, should be regular, clear, consistent, and accessible.

PAY AND BENEFITS

The COVID-19 pandemic has substantially impacted the economy and workforce demand. Reopening businesses may find themselves in the position of reducing the pay and hours of returning employees.

An employer looking to reduce employee pay must take into consideration the following issues:

Employers should be aware of the job-protected and/or paid leave benefits available to employees through legislation enacted by federal, state, and local governments because of COVID-19. Policies may need to be updated to reflect these new laws. Specifically:

LAYOFF VS. FURLOUGH

Layoff (also known as reduction-in-force or downsizing), is the permanent termination of employees as part of a plan by the employer to reduce payroll costs or headcount in response to business need. On the other hand, furlough generally refers to a temporary suspension of employment for a specified time period, during which employees do not receive wages. Unlike a layoff, a furlough is not a separation from employment. A furlough allows an employer to retain employees with institutional knowledge and experience that may ease the costly and timely process of rehiring and retraining personnel when economic conditions improve.

Because the employment relationship remains intact between employers and furloughed employees, recalling furlough employees can be less complicated than rehiring laid-off employees. For example, depending on the employer’s policies and plans, a furloughed employee may be eligible for continuation of employer-provided benefits. On the other hand, laid-off employees likely lose their benefit eligibility. Employers rehiring laid-off employees should consider whether the rehired employees would be able to retain their benefits as if they had not left the company. Nonetheless, whether recalling furloughed employees or rehiring laid-off employees, employers must keep in mind their legal obligations, such as those under anti-discrimination laws and collective bargaining agreements (for employers with a union-represented workforce). 

A Non-Discriminatory Reopening 

Employers must always be conscious of their obligation to prevent workplace discrimination and harassment. Some considerations for employers to take into account:

A Safe Reopening

Employers looking to reopen the workplace need to plan and implement safety policies and practices to prevent employee exposure and curtail the transmission of the virus. 

A Sensible Reopening

The fluidity of the situation requires that employers be sensible in the process of reopening the workplace. The ultimate goal is to have a safe, healthy, and productive workplace, and quick reactions to issues arising during this difficult time can be counterproductive.

This is part of a series of our COVID-19 alerts providing clients with practical advice on measures they can take to navigate through these troubled times. Please contact the authors or your Miller Canfield attorney with further questions.

This information is based on the facts and guidance available at the time of publication, and may be subject to change.