Employment Question of the Day: April 22, 2020 – Part 1

April 22, 2020

By Mary M. Krakow and Emily S. Pontius

Question

What are best practices when you are ready to recall furloughed employees?

Answer

Some employers may be ready to recall employees furloughed during the prior four to five weeks. The COVID-19 pandemic is not over, but maybe funds from the federal Payroll Protection Program, new remote work capabilities or other developments are allowing you to increase your active work force. You could just start making phone calls to share the happy news, but we have several suggestions for best practices that may prevent immediate and long-term legal issues.

1.  Recall employees in the correct order.

The method with the least risk is to recall according to the job function needed and seniority. Do not consider, at this point, which employees might prefer to stay home, which employees are being paid more in unemployment benefits or which employees are more vulnerable to the virus due to age or health conditions. Considering and speculating about those issues could lead to later claims of unfair treatment, especially if those left on furlough end up being permanently separated from employment or are passed up for promotion in the coming weeks, months or years.

2.  Provide information in writing.

Personal communication in a telephone call is great, but make sure to follow up with an email or letter that employees can reference if questions arise. Be as transparent as possible about the difficult decisions ahead, your expectations and recent changes in the workplace. Some suggestions:

  • In addition to providing the date and time the employee is expected to report, include information about any changes in the employee’s schedule, work hours, supervision, compensation, benefits, job duties, and other terms and conditions of employment. If changes could be construed as “adverse actions,” explain the legitimate business reasons for those changes.
  • Describe and explain new required safety precautions such as masking, disinfecting practices, temperature-taking, and requirements for distance or barriers between employees and between employees and customers. OSHA has issued guidance on preparing workplaces for COVID-19. Following that guidance is a first step in preventing workplace safety complaints.
  • If work is remote, inform employees about requirements concerning production, check-in meetings, availability and recording time (for non-exempt employees). We have long cautioned employers about the risks of non-exempt employees working “off the clock” if they can work remotely. In this time of COVID-19, working remotely has been encouraged and proper time recording is even more important. Employers must pay for all hours worked and pay overtime to non-exempt employees as required by state and federal law.
  • Remind employees that employment remains at-will and you expect and reserve the right to make other changes as business needs require. In other words, there may be more changes to the terms and conditions of their recall (e.g., changes in duties or schedules), another furlough or a layoff in the future. Also, performance requirements still apply.

3.  Be ready for questions and concerns.

Employees furloughed a month ago have been available to care for children home from school or childcare and have not confronted concerns about contracting the virus at work and exposing vulnerable family members. Be ready with information and answers about measures taken to keep them safe at work; availability of sick leave, personal leave and PTO; leave under the Families First Coronavirus Recovery Act and the federal Family and Medical Leave Act or any applicable state and local leave (including, e.g., sick and safety leave); and information about requesting accommodations.

If you expect employees to work remotely, be prepared to respond if employees do not have internet access or other resources to perform the work required for their jobs. Will you pay for them to obtain internet service at home or require them to bear that expense, or will you allow or require them to come to the workplace?

You will be asked unexpected questions, and your immediate response is important. Be prepared to respond to even the most outlandish requests by thanking the employee for the question and letting them know you will need to investigate and will respond as soon as you are able.

4.  Review your personnel policies.

Your employee handbook and personnel policies were written for a pre-pandemic world. Take a spin through your policies, especially those concerning remote work, sick leave, electronic communications and absenteeism. This may be an appropriate time to update your personnel policies for new workplace realities.

For more information, please contact your Fredrikson & Byron attorney.


Employment Question of the Day: April 22, 2020 – Part 2

View All: COVID-19 Employment Question of the Day

Fredrikson & Byron’s COVID-19 Resource Center