Law Special Coverage

Employers Need to Proceed Carefully to Avoid Costly Missteps

Calling Back Workers

By Mary Jo Kennedy, Esq. and Sarah Willey, Esq.

Mary Jo Kennedy

Mary Jo Kennedy

Sarah Willey

Sarah Willey

As businesses prepare for reopening, many employers are summoning laid-off and furloughed employees and notifying employees who have been working remotely to return to the physical workplace.

Some employers are anticipating that their reopening may be a gradual process. Employers may do a ‘soft reopening’ in order to test workplace-safety measures such as social distancing. Some businesses may find, as a result of new safety procedures, that their workplace no longer requires certain positions. As a result, employers may not need the same number of employees or positions they had back in early March.

However, recalling only a portion of a workforce does have its own risks. Employers should carefully consider who and how many workers to recall and when to have them return.

Once notified, workers’ responses to the callback may vary. Some employees will welcome the return to work as a sign that things are returning to ‘normal,’ while others may have mixed feelings as they may want or need to stay home until the pandemic is over. Employers must consider how to best respond to workers’ requests.

How do you select which employees to call back when calling back fewer than all?

First, identify the types of positions and the number of employees needed for each position to be recalled. There may be certain skill sets or knowledge base needed in order to ramp up business after the shutdown.

“If they have medical concerns regarding returning to work, they should discuss those concerns with their supervisor or human-resources team and encourage them to stay home or arrange an alternate work assignment.”

Second, businesses should consider any policy or past practice regarding recalling employees as there may be a legitimate business reason for not following them. Employers should evaluate their business rationale for the selection process and document the criteria used for selecting one employee over another. Selection criteria may appear neutral on the surface, but the effect of its application may inadvertently result in the elimination of all or a majority of a group of employees in a class protected under discrimination laws. As a result, selection criteria may need to be reconsidered in order to avoid possible discrimination claims.

Can you decide not to recall employees because of a concern regarding their health?

Employers may have a genuine concern that a group of employees may be susceptible to greater harm if infected with COVID-19. For example, an employer may be concerned about possible exposure to COVID-19 of an older employee, employees with known medical conditions, or a pregnant employee. Any selection decision based on a person’s age, perceived disability, or pregnancy will expose the employer to discrimination claims.

Employers should not take a paternalistic view of deciding what is best for its employees. Rather, an employer should let employees know that, if they have medical concerns regarding returning to work, they should discuss those concerns with their supervisor or human-resources team and encourage them to stay home or arrange an alternate work assignment.

What if you laid off some and furloughed other employees?

Employers should consider calling back furloughed employees before rehiring laid-off employees. Employers may have given furloughed employees written assurances that they would be called back and may have retained them on health insurance, indicators that the employer intended to have the furloughed employees return to work.

How do you communicate the call back?

Employers should communicate the offer to return to work in writing. The communication should detail the start date, full-time or part-time status, position, hours, work schedules, wages, location, and conditions of the job.

What if a business calls back laid-off or furloughed employees and the response is that an employee has found other employment?

If an employer is told that a laid-off or furloughed employee is not returning to work because the individual has found employment elsewhere, the employer should document the reason for not returning and then move to the next employee on the recall list. If your business participated in the Paycheck Protection Program, documenting the reason for the refusal is critical in order to meet the loan-forgiveness requirements.

Also, if accrued but unused vacation time has not previously been paid, it should be paid out to the employee immediately, and if the employee was on the employer’s health insurance, a COBRA notice should be sent to the employee.

What if a business calls back a laid-off or furloughed employee who is unable to return to work because of a lack of childcare?

With schools and daycare facilities currently closed, employees with school-aged children may not have childcare options. Under the CARES Act, individuals who are unable to work (including telework) and are the primary caregiver for a child whose school or childcare facility is closed or whose childcare provider is unavailable due to COVID-19 can receive Pandemic Unemployment Assistance.

In addition, the employee may be eligible for paid extended family and medical leave under the Families First Coronavirus Response Act (FFCRA), under which eligible employees who are unable to work at their normal worksite or by means of telework are entitled to 12 weeks of paid extended family and medical leave (at two-thirds of their regular rate of pay) to care for a child whose school or place of care is closed (or childcare provider is unavailable) due to COVID-19-related reasons.

The FFCRA provides eligibility for paid extended family and medical leave to an employee who was laid off or otherwise terminated by the employer on or after March 1, 2020 and rehired or otherwise re-employed by the employer on or before Dec. 31, 2020, provided that the employee had been on the employer’s payroll for 30 or more of the 60 calendar days prior to the date the employee was laid off or otherwise terminated.

What if an employee has been working remotely during the shutdown and is unable to physically return to the worksite because of a lack of childcare?

While many remote employees have been able to work effectively at home during the forced shutdown, other remote employees may have struggled due their type of work not being conducive to telework. An employer may have valid concerns about an employee’s telework performance, such as the quality and quantity of the work, and should address with remote employees any performance issues.

An employer should discuss with an employee the possibility of flexible or reduced hours in a physical workplace or a modified remote-work schedule. If these options are not viable, an employee unable to return to their normal worksite may be eligible for unemployment.

What if an employee who has a medical condition increasing their risk of harm if exposed to COVID-19 wants to continue working remotely?

Addressing this issue requires consideration of federal and state reasonable-accommodation laws. If the medical diagnosis constitutes a disability under state or federal disability laws, the employee may be entitled to a reasonable accommodation. Given these unprecedented times, an employer may treat a medical condition that puts an individual at an increased risk of harm if exposed to COVID-19 as a disability. The employer should also explore with the employee other possible accommodations in addition to working remotely.

What if an employee can work but has a medical condition, adding increased risk of harm if exposed to COVID-19, but the employee’s job duties cannot be done remotely?

Dealing with employees whose work cannot be done remotely but are at an increased risk of harm if exposed to COVID-19 has unique concerns, and each situation should be considered on a case-by-case basis. If the employee was advised by a healthcare provider to self-quarantine due to concerns related to COVID-19 and the employer is subject to the FFCRA, the employee may be eligible for 80 hours of paid sick leave under FFCRA.

However, in this scenario, the FFCRA requires that the employee be “particularly vulnerable to COVID-19” and that following the advice of a healthcare provider to self-quarantine prevents the employee from being able to work, either at the employee’s workplace or by telework. Employers should obtain appropriate medical documentation substantiating the reasons for the self-quarantine.

In addition, if the medical diagnosis constitutes a serious medical condition or a disability, the employee may be entitled to either an unpaid leave of absence under the Family Medical Leave Act (if the employer has 50 or more employees and as such is a FMLA-covered employer) or a leave of absence as a reasonable accommodation for the disability.

What if an employee wants to continue to work remotely because the employee has an immediate family member who has a medical condition that puts that family member at increased risk of harm if exposed to COVID-19?

An eligible employee of a FMLA-covered employer can take a leave of absence to care for a family member with a serious medical condition. But if the family member does not need the employee’s care, the requirements for FMLA leave would not be met.

Under the American with Disabilities Act, employers are required to provide qualified disabled employees with a reasonable accommodation. When leave and accommodation laws do not apply, employees may ask employers to apply common decency to the situation and let them return to the physical workplace at a later time.

These are challenging issues for employers, who must balance the need to protect employees from COVID-19 with the need to maintain a workforce to keep the business open.

Employers should be cautious when navigating the various leave and disability laws in order to avoid lawsuits. Before denying employees’ leaves or other reasonable-accommodation requests, employers should engage with employees in order to assess the validity and reasonableness of the requests and should document the steps taken.

Mary Jo Kennedy is a partner and chair of the employment group at Bulkley Richardson, and Sarah Willey is counsel and member of the employment group at Bulkley Richardson.

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