By Carrie B. Cherveny, Esq.
Employers recalling employees from a furlough or leave of absence should proceed carefully and deliberately. Initially, it may be prudent for employers to consider only the most critical roles for recall. Managing a workforce in a COVID-19 environment is uncharted territory and employers may want to proceed with small, manageable steps.
Regardless of the employer’s approach, they must be sure that they are recalling employees on the basis of objective, job related classifications. The basis for the recall must be related to business needs and should not take into account any personal characteristics of the employee. For example, employers may not select employees to return based on familial status (they have small children home), medical status (they are “strong and healthy”), or age (they are young and not considered high-risk). Likewise, employers must be sure that their otherwise objective criteria does not result in a disparate impact. For example, we are bringing back all servers but none of the bus-people or food runners (and all the servers are female and the bus-people/food runners are male).
Recall discrimination lawsuits are on the rise. Employees are filing charges of discrimination with the EEOC at an increasing rate, alleging that their employers failed to recall them because of a discriminatory reason. Therefore, it’s likewise important for employers to ensure they have documentation that supports the legitimate and objective basis for their decisions.
Employers recalling employees should do so in writing – even if they otherwise speak with the employee on the phone or via email/text/chat. Employers should provide the employee a written offer to return to work that includes certain and essential job-related information (see our sample attached to this blog). In many cases, the employee’s job duties, job titles, and/or compensation may have changed. However, even if the employer doesn’t make any changes to the employee’s position or compensation, it is best to memorialize and confirm the details of the employee’s position given the gap in service.
Health and Safety Protocols
As employees return to the workplace, employers are implementing new COVID-19 health and safety policies. The recall offer letter provides an opportunity to explain and deliver updated and/or new workplace policies including COVID-19 health and safety standards of conduct and safety rules. Providing the updated/new safety protocols in the recall offer letter can serve two purposes. First, it sets out the employer’s expectations, standards of conduct, and work rules right up front which will assist employers with their future policy enforcement. Second, employees may be concerned about the employer’s safety protocols and hesitant or resistant to return because they are afraid of contracting the virus. Providing the employer’s safety protocols right up front will help overcome employees’ fears and uncertainties regarding a return to work.
Nonetheless, employers should take an employee’s fear of returning to work seriously. At a minimum, OSHA provides protections for employee whistleblowers. It is incumbent upon employers to listen to the employees’ concerns and provide them with information that demonstrates the safety protocols and standards. Likewise, employers must be responsive to any deficiencies in the safety protocols. The OSHA General Duty Clause requires employers to provide a safe working environment for all employees in all industries. Included in the safety protocols must be an explanation that the employee may not enter the workspace if he/she:
- Has had close contact with someone diagnosed with COVID-19;
- Has symptoms of COVID-19;
- Has been diagnosed with COVID-19.
In fact, the CDC recommends that employers implement daily employee COVID-19 screening (see our Back to Business Playbook). Employers may also want to screen employees for travel or other high-risk activities.
The recall offer letter also provides employees with an opportunity to request flexibility in work arrangements (see EEOC FAQ G.6). Employers may open the door for employees to self-identify their own high-risk medical condition or life circumstances that complicate (or inhibit) their ability to return to work (i.e. child care challenges or their own medical condition) and request an accommodation or protected leave of absence. Providing employees with this opportunity will encourage an exchange of information and the interactive process (Americans with Disabilities Act). Employers must remember that an employee who self-identifies as having a high-risk medical condition may have rights under the ADA and the employer is obligated to enter into the interactive process to identify an accommodation that allows the employee to perform the essential functions of the job. Additionally, employers are obligated under the ADA to keep employee medical information confidential and secured in a separate file. Likewise, employees who have child care challenges because of the closure of schools/day care as a result of COVID-19 may be eligible for protected leave under the Families First Coronavirus Recover Act (Emergency Paid Sick Leave and Emergency Family and Medical Leave Act).
The written recall letter may also assist employers in addressing unwarranted and ongoing employee unemployment claims. In some cases, employees may express a preference for remaining on unemployment rather than returning to work. An employee provided with a suitable offer of fulltime work may (varies by state and specific circumstance) become ineligible for unemployment benefits. The recall offer letter will assist the employer in demonstrating the suitable fulltime offer made to the employee if it chooses to dispute the employee’s ongoing unemployment eligibility. However, employers should proceed with caution when disputing an employee’s unemployment and first rule out all of the other legitimate reasons for not returning to work addressed previously in this blog (employee own health reasons, high risk individuals at home, COVID-19 related child-care issues, and legitimate safety concerns).
Finally, employers should ensure that employees sign an acknowledgment of the recall offer of employment and that they reinforce the employment at will status. The employer may also provide the employee with an opportunity use this recall letter as a resignation of employment.
Whatever approach employers take to “rebooting” their working environment, it is important that they proceed with caution and seek out expert advisors to assist.
Hub International’s Risk Services team is available to all HUB clients to assist them with building and implementing workplace protocols and programs responsive to the current COVID-19 pandemic.
Get the latest information, guidance and resources on Coronavirus (COVID-19) to help you protect what matters most on our Coronavirus Resource Center.
Neither Hub International Limited nor any of its affiliated companies is a law or accounting firm, and therefore they cannot provide legal or tax advice. The information herein is provided for general information only, and is not intended to constitute legal or tax advice as to an organization’s specific circumstances. It is based on Hub International's understanding of the law as it exists on the date of this publication. Subsequent developments may result in this information becoming outdated or incorrect and Hub International does not have an obligation to update this information. You should consult an attorney, accountant, or other legal or tax professional regarding the application of the general information provided here to your organization’s specific situation in light of your organization’s particular needs.