As states ease restrictions put in place by COVID-19 stay-at-home orders, employers are grappling with multi-faceted risk analysis and questions regarding the best way to recall employees to work:
- When should we reopen?
- Should all employees come back at once, or should we recall employees in waves?
- If we don’t call all employees back at the same time, who should we recall first?
- What safety and social distancing protocols should be in place?
And, of course, the answers to these questions will vary, depending on your business, facility, location, number of workers, work available and other factors.
To better understand the issues that employers are facing, Dykema conducted a COVID-19 Employer Flash Survey during the last week of April.
When the survey was conducted, half of the 125 responding employers said they’d reduced staff due to the pandemic, primarily by furloughing employees.
Resistance to Return to Work recalls
Adding to an already complicated situation, many of the employers responding to the survey reported that they are seeing resistance from furloughed employees who don’t want to return to company facilities when they are recalled.
In fact, only 32% of the 125 employers in “recall mode” who participated in the April survey reported that they were experiencing “considerable employee cooperation” in recalls.
Approximately 26% of employers who indicated they’ve met some level of employee resistance to returning cited resistance due to fear of being exposed to the coronavirus.
And even more, 28%, said they perceived resistance coming from workers’ desire to continue receiving unemployment compensation.
That’s understandable.
Based on the additional $600 per week in unemployment compensation available through the CARES Act, many employees are receiving similar, if not more, compensation while staying at home and collecting unemployment than they would make returning to work at their current wages.
And, while not a question asked as part of this survey, other reporting makes it clear that the cost and availability of childcare that employees will again need when they head back to work is a growing concern among workers.
So, many workers are not eager to return until they are forced to or after the emergency federal unemployment funds expire, currently scheduled for July 31, 2020.
State of Return to Work plans
With such a high level of resistance and continued uncertainty about whether unemployment benefits will be extended beyond July 31, employers and employees need to understand the legal ramifications of their return-to-work decisions.
But only half of employers responding to Dykema’s survey had yet established objective criteria to determine the order in which employees would be recalled to work.
This is an important consideration for both employers and workers.
Non-discriminatory Return to Work decisions
Unless an employer has an agreement or policy in place requiring employees to be recalled in some specific manner, once closures are lifted in a given locale, employers can choose to recall employees based on any legitimate, non-discriminatory factor.
Those decision factors may include seniority, job position or documented performance history.
But, while you may ask for volunteers to decide who returns first, employers who recall (or don’t recall) workers based on age, child-care responsibilities or perception of disability risk getting hit with a discrimination claim.
That makes it critical that you document the basis for recall decisions at the time they are made, and note any objective criteria considered.
Keep in mind, even in normal times it is often difficult to remember all of the reasons for recalling one employee over another when a Charge of Discrimination or lawsuit is filed months after the fact.
The current chaotic situation may make it even harder.
When employees refuse to Return to Work
Turning back to the immediate future, if an employee refuses to return to work because he or she prefers to receive unemployment compensation benefits, the employee may be deemed to have resigned.
This is a big deal because all states have some version of a rule requiring employees to be willing and able to work in order to continue to receive unemployment benefits.
As a result, if an employee resigns by refusing a recall, he or she may be disqualified from receiving further unemployment compensation.
So what about workers who are just plain scared? Do they have legal protections?
An employee who refuses to return to work out of a generalized fear of exposure to COVID-19 is not currently entitled to job-protected leave, and may also be deemed to have resigned.
But, as with all things COVID, the details are not simple.
ADA Return to Work considerations
Fortunately, the EEOC has recently provided helpful guidance for employers facing these kinds of concerns.
If an employee cites an underlying medical condition as the basis for a request to return to work later or to work from home, employers should consider these requests on a case-by-case basis.
Like similar scenarios not involving COVID, under the Americans with Disabilities Act (ADA), employers must determine whether the employee asking to continue working from home has a disability and whether there is a reasonable accommodation that can be provided.
‘Why can’t I return to work?’
And what if an at-risk employee wants to get back to your facility once it is reopened?
In short, employers should leave that choice to each employee.
Under the ADA, employers cannot decide to keep employees home simply because they are considered vulnerable under CDC guidance.
Unless an employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation (increased distancing, barriers, staggered shifts, etc.), they must be treated exactly the same as all other employees.
And the EEOC has explained that the “direct threat” standard is a high bar based on an individualized medical assessment of employee’s disability.
This bar cannot be met by simply showing that the employee has a condition that the CDC has identified as putting him or her at higher risk if they contract COVID-19.
Return to Work communication
As you prepare to recall workers, make sure you are communicating with employees about your plans. In these communications, inform employees of the potential repercussions for unemployment benefits if an employee refuses to return to work when recalled.
Employers should also provide information about any added safety measures that will be in place to protect employees and visitors (for example, health screening, face masks and PPE, social distancing, increased HVAC ventilation, and enhanced cleaning).
This additional information may help ease employee fears, curb resistance to recalls, and make the return-to-work process smoother for employers.
OSHA has provided Guidance on Preparing Workplaces for COVID-19 that employers should consult as they prepare and communicate their reopening game plan.
This additional information may help ease employee fears, curb resistance to recalls, and make the return-to-work process smoother for employers.
In addition, employers are advised to regularly consult and share materials distributed by the CDC, OSHA, EEOC, Department of Labor and state and local authorities, as the regulatory guidance for employers and employees is changing rapidly.
A constantly updated list of links to those and other resources is available at HRMorning’s webpage, Coronavirus (COVID-19) Resources for HR Professionals.
For More Information
There’s a lot of uncertainty about what that new normal will look like, but we do know that leaders, managers, and HR professionals will shape the future of work.
That also means they’ll spend a lot of time navigating the significant challenges it will pose.
The ADA, employment laws, privacy laws – these will all be stretched and tested by this crisis in ways we’ve never imagined.
Join your peers for our live workshop How to Safely Return to Work Amidst COVID-19 at 1 PM ET on Tuesday, June 30th, and available on-demand anytime, to prepare yourself and your business to navigate the uncharted waters ahead.
You’ll learn how to:
- Conduct an orderly, legal, and safe return-to-work procedure
- Anticipate and address the concerns of older employees, employees with disabilities, and employees who are reluctant to return
- Make – and keep – your workplace as safe as reasonably possible
- and much more
Click here for registration and more information.
About the Speaker
Jim Castagnera holds an M.A. in Journalism from Kent State University and a J.D. and Ph.D. (American Studies) from Case Western Reserve University. He practiced law for 36 years as a labor, employment and intellectual-property attorney; general counsel; and associate provost & legal counsel for academic affairs at Rider University.
Currently, he devotes his full-time to writing, teaching and training. He is the chief consultant for Holland Media Services, a writing, training and communications company; a founding member of LMC Conflict Training & Conciliation, Inc., and an officer of the International Cyber, Privacy & Compliance Risk Institute.
