Ogletree Deakins Law FirmAfter months of stay-at-home and shelter-in-place orders caused by COVID-19, or the coronavirus pandemic, the country is starting to stir. Some cities and states have begun lifting portions of these orders to reestablish some semblance of normal, which means employers must prepare for the return of normal work operations.
But in these confusing and unprecedented times, that is easier said than done. Were employees laid off? Were they allowed to work from home? What about safety protocols for the office moving forward? The questions may seem endless.
In a webinar called, Information on Getting the Workforce Back in the Workplace with Ogletree Deakins Law Firm, Ashley Prickett Cuttino, an employment attorney and national lead for the company on employment and assets, broke down what reopening will mean for companies in this post-COVID-19 age.
In this first installment of the series, we’ll discuss a broad range of issues that employers may encounter as they bring employees back, including benefits, paid time off (PTO), reinstatement procedures, updates to policies, and more.
Returning Looks Different for Everyone
According to Cuttino, employees returning to work occur in three different scenarios. One, your company has done a full layoff of employees, where the employment relationship was terminated. The second scenario is called a furlough. This means the employee’s hours were reduced to zero or they were put on an unpaid leave, but benefit plans may still be intact. Lastly, the third group are those who were moved to working from home, and you’re ready to move them back into an actual, physical workplace.
One thing that is important to note, says Cuttino, are the terms lay off and furlough, and the difference between the two.
“It is important to recognize that in actual employment law, there is no such distinction between these terms,” she says. “It is about the action that you took; not the word that you called it. If I use the word furlough, I am speaking about a situation in which you put someone on the equivalent of an unpaid leave. If I use the term layoff, I am talking about the termination of the employment relationship where you're no longer attached to that person affirmatively.”
Ready or Not
One of the first things employers must do is decide who they’re going to recall, how many people will be called back, and in what order that will take place. To do that, business owners should create and follow a thorough business plan.
“You should make this plan something that has a basis in business, and with an objective criteria,” Cuttino says. What that means is have standards in place for why you’re bringing one person back and not another, whether it’s seniority, critical job function for company production, etc. Make sure that you can do a clear qualification for why one person was chosen over another.
Whatever kind of return to work notice you decide to give, make sure it’s in writing. If they decline the offer to return, this return to work notice will be crucial for showing that they’re no longer eligible for unemployment. Either before or in your notice, clarify the safety measures the company plans to take to keep employees safe or further training that will be put in place. It’s crucial to highlight to your employees that there is a plan for the workplace to be safe when, and if, they return to work.
Another set of company policies to be aware of before having employees return to work are leaves of absence. If your company has less than 500 employees, there’s emergency FMLA available and the emergency paid sick leave that’s rolled under the Families First Coronavirus Response Act. But be cognizant of what’s in place, what your company can offer, and any changes to policies.
Other pieces to check before having employees return to work include workplace safety, special COVID-19 policies, furlough/recall statutes, and good attendance policies. If you have employees working from home, it is critical to have something in place that covers things such as who’s responsible for paying for what (supplies, internet, etc.), how to report hours worked, data security measures, etc.
“You want to make sure that, if you have people who are not normally remote employees, they actually know the rules that they must follow,” Cuttino says. “Just because their body is in a different place doesn't mean they don't have the same work rules in place.”
Employees are one of the biggest and greatest assets to a company's success. During turbulent times like the COVID-19 crisis, it’s imperative to make them feel valued. This means listening to their concerns, communicating with them often, and being honest.
“You also want to make sure that you have a way for there to be an open-door policy for complaints especially about health and safety,” Cuttino says. “You want your employees to be able to tell you if there is an issue somewhere that you need to address.”
If the health insurance company you work with has Teladoc EAP counseling or emergency childcare, remind your employees that these benefits are offered. It will help your employees feel appreciated and show that you are worried about their problems, not just getting the business started again.
One way to establish these positive interactions is making sure your supervisors are well-trained on communicating appropriately with your employees. For businesses to survive this, communication will be key.
“It’s going to be critical that workplaces keep their good employees, keep people who are hard workers and know what they're doing, and that’s going to come from everybody feeling like they are a part of the team and that you as an employer care about, not just the business, but about them,” Cuttino says.
She also suggests diversity and inclusion groups, family groups, or a women’s network as good sources of employee communications. They can be a great resource for engagement, community, and advice for your employees.
When it comes to employee relations, Cuttino says that the best thing to remember is this: while we’ve all been in the same corona-storm, everybody is in a different boat. Some things may be more impactful to one employee, but have an entirely different impact on another. Everyone has had a different experience in this pandemic, and the best thing to do is approach it respectfully.
Other Things to Consider
Now that you’ve made the decision to bring back employees and have provided forthright communications, there are a few additional things to consider. For starters, if you’ve changed people’s compensations, cut salaries, or reclassified someone from exempt to hourly, you’re going to need to consider if you’re ready to move them back to where they were or keep them where they’re at. That goes for health insurance and retirement plans as well.
Next, two things that many business owners might not consider are background checks and drug testing. These are usually done in advance before hiring a new employee, but what about after a furlough or lay off? According to Cuttino, there’s no need to redo a background check or drug test after furloughing an employee unless there’s some sort of suspicion.
However, if you laid off an employee and severed the employment relationship, you may want to run the tests again. Make sure you have the correct notice form on hand, and make sure you know your state’s rules on the matter. For some, it will be the same form that was filled out prior to hiring the employee, but if the acceptable date has passed, or, for example, you’re in California, you’ll need a new form.
Another thing to consider is confidential information. If your company has critical or sensitive materials, such as client lists, you need to consider who has access and where they are. For example, if you have people working from home, you need to make sure those lists are under the umbrella of a safe, secure network. If employees were able to take home laptops, docking stations, or phones, it’s pertinent to know who has what.
This pandemic has created a new set of issues for employers, with nuances that no one would ever consider. For your company to succeed in this new era, it will be important for you to do your due diligence while communicating often and openly. In the next article from this series, we’ll talk about the safety protocols companies should consider when opening up their workspaces and welcoming back their employees.