This article addresses several new issues employers will face as America reopens and employees return to work. Of course, those employers who are part of a Critical Infrastructure Sector have heroically soldiered on through the entire pandemic. Of the others, some have remained open but have had some or all employees working remotely, while still others curtailed all or most operations. Employers who made changes will now ‘un-make’ them, but those employers who experienced the most drastic changes to their operations since March also may experience the greatest reopening shocks in the coming weeks and months.
The Childcare Conundrum
In many states, Governors’ initial orders in mid-March included mandatory shutdowns of all public schools. Now, roughly two months later, almost all schools nationwide remain closed. Forty states have announced plans to remain closed for the remainder of the academic year (which usually ends in May or June), and as of 4 May, not a single one had announced a specific reopening date. Traditional leave laws such as the federal Family and Medical Leave Act and state laws such as the California Family Rights Act provide for leave in connection with the birth or adoption of a child, or when a child has a serious health condition. But none of these anticipate a widespread school closure. In March, Congress enacted the Families First Coronavirus Response Act (FFCRA). Basically, employers with fewer than 500 employees must provide two weeks of paid sick leave and, if school closure requires them to provide care to their children, up to ten additional weeks of partially-paid sick leave (up to USD 200 per day). Employers with fewer than 50 employees might be exempt, if providing such leave would jeopardize the employer’s ability to stay in business.
During the pandemic, employers may or may not have had their employees use and exhaust these new emergency federal benefits (although all employers covered by the FFCRA are required to notify employees of these benefits). But even if they have been used, employees whose children are shut out of school or childcare will not necessarily be able to return to work just because the employer can reopen. Employers must be prepared to address situations on a case-by-case basis, recognising that many states have laws against discrimination on the basis of family status.
If a reduction in business or revenue necessitates only a partial reopening, or a reopening with less than the full pre-pandemic complement of employees, some employees’ need for a reduced schedule or additional leave (possibly unpaid) might present an unexpected positive. Moreover, the challenge of social distancing required to minimise or eliminate the spread of COVID-19 might be addressed by establishing multiple shifts to allow more employees to work without coming into contact with each other; this solution also could provide an opportunity for employees to work during non-school hours. Employers should also consider whether remote-working solutions used during the pandemic can be kept in place until schools and daycares reopen.
Other solutions may include reminding employees of existing benefits plans such as dependent care reimbursement for those who previously had not needed them, or creating new plans. Finally, employers with appropriate facilities could consider engaging a childcare provider to offer on-site services. Obviously, there is no single solution for every employer, but a combination of creative approaches can help employers provide options for the greatest number of employees while navigating the complex network of new and existing laws.
Exhaustion of Vacation and Paid Time Off
During the COVID-19-related layoffs, furloughs, and shutdowns, many employees were focused on their immediate need for money to pay their bills, and employers worked hard to provide employees sources of income. In addition to relying on government programs designed to put money in the hands of employees, many employees tapped vacation or Paid Time Off (PTO) accounts for additional income. When those employees return to work, it is very likely that they will want to take time off for events or trips that they had planned long before COVID-19 turned lives upside down and drained the vacation/PTO time they had planned to use. What are employers’ obligations and options in dealing with such a circumstance? Creative options include unpaid leaves of absence and ‘vacation/PTO debt’. However, as employers attempt to rebuild, hard decisions may need to be made, and each of these options comes with its own set of legal complexities. While every situation must be evaluated separately, a little planning and preparation now will pay dividends later.
Re-Employment – Legal Considerations and Best Practices
While COVID-19 has created its own set of return-to-work issues, it is important that employers remember the basics as they prepare for employees to return to work. A first consideration is the employees’ current employment status: are they still employed or were they actually terminated? Were they ‘furloughed’ or ‘laid off’, and regardless of terminology, what were they told to expect regarding their return to work? Employers will need to address actual or implied promises to employees (which likely were made and communicated during the chaotic early days of the pandemic crisis) to make sure that claims of breach of contract do not arise.
Next, remember that long-established discrimination, retaliation, and privacy laws still apply. Decisions regarding re-employment, including return-to-work order (i.e. who comes back first), duties, wages and benefits must be carried out in accordance with applicable laws and based on legitimate, non-discriminatory, non-retaliatory grounds. Some states and cities have enacted ‘return-to-work’ legislation mandating that seniority be followed even if the employer is not bound by a union agreement and has not had a seniority system in place.
In sum, return to work issues add a new set of challenges and considerations for employers. By remembering fundamental principles and treating each returning employee as an individual, employers can make recovery from the pandemic as smooth as possible.