In Depth
1. As businesses reopen, all employment-related decisions will be subject to heightened scrutiny, particularly those that only impact a portion of the workforce. It is critical to have clear policies and communication detailing how employees will be brought back to work and to ensure such policies are based on non-discriminatory criteria. If objective criteria were utilized in making hiring/furlough/termination decisions when stay-at-home orders were initially implemented, consider utilizing similar framework for return to work decisions while also being mindful of eliminating unconscious bias. To the extent requests for accommodations are made, follow EEOC guidance and ensure engagement in the interactive process.
2. Many employers are only able to bring back a portion of the workforce in the initial phase of reopening. Consider whether your return to work policies or protocols, including deciding who returns and when, may create a disparate impact on certain protected workers. While a formal impact analysis following EEOC guidance does not necessarily need to be done, an informal “gut check” of employment decisions can help avoid unconscious bias, and ensure that returning employees reflect the diverse workforce many businesses have worked hard to maintain. Return to work protocols must be implemented consistently for all employees, and without discrimination, harassment and retaliation.
3. 40% of our webinar attendees indicated they have already begun to notify employees of return to office or return to work plans. When bringing employees back to the office or back from a furlough, employers should send a written notice of recall and/or return to office, addressing the date of recall and/or return, any changes related to PPE requirements, policies and economics. If considering salary reductions, remember that employers are not permitted to reduce wages below the federal and applicable state minimum wage, and for exempt employees, salaries cannot be reduced below federal and any applicable state threshold. It is important to evaluate the job duties and responsibilities of employees who are classified as exempt but who may have had changes in their role because of COVID-19 to ensure that their return to work duties still meet the requirements of the applicable exemption. Ensure that systems and policies are in place to track hours for non-exempt employees and also follow applicable state meal and rest break requirements.
4. As employees return to work, you have an obligation as an employer to prevent workplace harassment and discrimination. Remain familiar with anti-harassment and anti-discrimination policies and communicate to all employees that harassment and discrimination are illegal and will not be tolerated in the workplace. For example, while fear of COVID-19 is valid, it should not and cannot be misdirected against an individual because he/she falls into a protected category. This applies to both employees working physically in the office and those who continue to work remotely. Training supervisors of the policies and employees on available reporting channels is also advisable.
5. Under the federal Worker Adjustment and Retraining Notification (WARN) Act, most employers with 100 or more full-time employees are required to provide 60 calendar days advance notification of plant closings and mass layoffs. There are exceptions to the federal WARN notice requirement in the event (i) the closing or mass layoff is caused by business circumstances that were not reasonably foreseen at the time notice would have been required, (ii) for a faltering company, or (iii) because of a natural disaster. However, even if an exception applies, any event that triggers WARN still requires notice to affected employees. Some states also have mini WARN acts that may have different notice requirements. Employers should work with counsel to ensure they are fully complying with federal and state laws.
