As coronavirus restrictions begin to lift, more and more business owners are opening their doors and returning furloughed, laid off, and remote workers. There are a lot of moving targets and navigating all the interacting laws can be cumbersome and confusing. The following are things all employers must consider to avoid labor law pitfalls.
FOLLOW ALL STATE, COUNTY, AND CITY GUIDELINES
For example, many counties are only allowing for 50% of the workforce to return to work. They are also often requiring other measures such as company supplied masks and social distancing. If social distancing is not possible, placing impermeable barriers between close employees can be recommended. You may want to consider splitting or rotating shifts to reduce the number of people at the location at any given time, or only bringing back a partial workforce. If you choose the latter, make the decision of who to bring back first carefully to avoid possible discrimination pitfalls. An easy rule of thumb is to bring workers back based on seniority, if possible.
Have a safety plan in place before bringing employees back and be sure to communicate the plan to your team. This will provide them with expectations and help show that their employer is taking their safety seriously.
The EEOC has made possible some options for employers that weren’t previously available, such as temperature taking. Prior to allowing a person to work, you are now allowed to take employees’ temperature of and ask about other coronavirus-related symptoms. Please keep in mind that this does fall into the category of being medical information and must be kept confidential under HIPPA requirements. If an employee is showing symptoms, they may be barred from working. Again, under HIPPA requirements, if someone is ill with the coronavirus you may not reveal their name to the rest of your team – even if you have a small team, and it is obvious who the employee is. This would be considered revealing medical information.
Keep in mind that you may not ask employees to disclose medical conditions. Even if you are trying to protect those who may be vulnerable, this is in violation of the ADA.
CDC Guidance for Businesses and Employers: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html
State Safer-at-Home Guidance: https://covid19.colorado.gov/safer-at-home/safer-at-home-office-based-business
Governor Polis’s Safer-at-Home Executive Order: https://www.colorado.gov/governor/sites/default/files/inline-files/D%202020%20044%20Safer%20at%20Home.pdf
EMPLOYEES WHO DO NOT WISH TO RETURN TO WORK
The first step is asking the employee why they don’t wish to return. Below are the most common reasons we are seeing.
- The employee is a vulnerable person or lives with a vulnerable person. This is now a status that may require an accommodation, which likely may come in the form of a leave of absence or continued work from home. If the employee was on furlough or laid off, we cannot cancel unemployment benefits.
- You may also not prevent a known vulnerable person from working as this would be considered discriminatory. You can have a conversation with the person to see if they are comfortable returning to work, and if they are, you must allow it.
- The employee is making more on unemployment benefits, so they don’t want to return. This can require a simple conversation explaining that if they do not return, their benefits will be cancelled. If the employee still refuses for this reason, and you are a client of ours, please inform StaffScapes so we submit notification to the unemployment office that they refused work.
- They are scared to return. This could require another conversation to address any concerns. Go over your plan for safety and the state and CDC requirements to show how you plan to follow them. If they are still concerned, consider if you’re able to accommodate a leave of absence. If you’re not, then this would again be considered refusing work and their unemployment benefits will need to be cancelled.
PPP FORGIVENESS PITFALLS
Those who received PPP funding will likely want as much forgiven as possible. The Treasury has released information on how to ensure your loan is still fully forgiven, even if not all your employees choose to return to work.
If you have an employee who refused to return, you must be able to show that you made a good faith offer of employment. This should be in the form of a written offer of rehire and written documentation of the employee’s rejection.
Specifics on this can be found in question 40 in the Treasury’s FAQ found here: https://home.treasury.gov/system/files/136/Paycheck-Protection-Program-Frequently-Asked-Questions.pdf