Return to Work challenges after COVID
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 Dykstra’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 (e.g., 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.
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