Guidance for Employers: Bringing Employees Back to Work

FLB Law      May. 14, 2020

As the COVID-19 restrictions begin to relax and employees are permitted to return to the workplace, employers will likely have questions regarding the logistics for that return. The return to the workplace is not without complication. Some employees will be more than ready to return, while others will have many concerns about returning.

The first question typically is – which employees should an employer rehire? This decision must be based on non-discriminatory factors. Employers should not exclude any employees from rehire based on characteristics such as age or perceived pre-existing health condition. On the other hand, examples of non-discriminatory factors include seniority and the needs of the employer. For example, due to government restrictions limiting in-person retail, a retail establishment might not initially rehire direct sales associates, but may focus its rehiring on internet sales and shipping staff.

One way for an employer to help ease employees’ return to work concerns is through clear, consistent, and compassionate communication. The first communication that an employer is likely to make is the employer’s good faith offer to rehire.  It is important that this initial communication be in writing. This communication should include details of any new policies and procedures with regard to social distancing, mask-wearing, cleaning/disinfecting and hand-washing recommendations (enclosing a copy of any policy is also recommended). In Pennsylvania, employers also should provide employees with written information concerning the Department of Health social distancing requirements and how those requirements will be implemented. These types of communications should help returning employees to feel more comfortable and safe in the workplace, easing any potential health-related concerns.

Many employers will face a situation where an employee refuses to return to work. If an employer is faced with this situation, an employer should first ask the employee why the employee does not want to return to work. Common reasons include health/safety concerns, lack of childcare, and the enhanced availability/amount of unemployment compensation. If the reason is related to health/safety, the employer should reiterate that the organization regards the health and safety of employees and others as paramount, and remind the employee of the precautions that it has taken to protect health/safety and inquire whether the employee has a specific reason for concern. If the reason is related to lack of childcare, the employer should contact counsel to determine whether the employee is eligible for leave. If the reason is that unemployment is more financially advantageous than returning to work, the employer should consider reminding the employee that refusing to return the work may negatively impact the employee’s ability to collect unemployment. If the reason is related to a health condition that may put the employee at greater risk related to COVID-19 exposure, the employer should tread carefully and determine whether it has an obligation to provide sick leave or engage in an interactive process with the employee to determine if the employer can provide a reasonable accommodation that does not pose an undue burden.  If, after communicating with the employee, the employee still refuses to return to work, the employer should document that refusal in writing to the employee.

Returning to work will present several challenges to both employers and employees. Employers are encouraged to consult with counsel as they navigate these new and unique challenges. To learn more, you can also view this webinar give by Employment Law & Labor Relations Attorneys Jacob M. Sitman and Stephanie A. Koenig.

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