cOVID 19: Returning to Work

Establishing and applying fact-based criteria that are consistent with your legitimate business needs and documenting the reasons for your decisions are important considerations when returning employees to work. Remember to also review the requirements in any written employment agreements, or collective bargaining agreement if you have unionized employees, to make sure that you’re remaining in compliance.

Employer decisions cannot be based on reasons that violate federal, state, or local antidiscrimination laws. For example, because an employee is a member of a group protected by these laws, has made complaints that are legally protected (i.e. complaints about discrimination or harassment), has taken leave that is protected under federal, state or local law, or because the employer believes that an employee will request leave when called back to work, including EPSL or EFMLA. If you have questions about these laws, or your selection process appears to violate them, consult with your legal counsel.

Employers receiving loans available under the CARES Act and seeking loan forgiveness for payroll costs should consider the following:

• Loan forgiveness will be reduced for any reductions in FTEs. Employers should recall or rehire employees no later than June 30, 2020 to receive unreduced loan forgiveness for layoffs occurring prior to April 26. We are still waiting on official guidance, however, it appears rehires should occur more quickly for unreduced loan forgiveness for May and June, since loan forgiveness is reduced proportionately for reductions in Full Time Equivalent (FTEs).
• Loan forgiveness will be reduced by the amount of any wages or salary in excess of 25%.

Employers should consider issuing return to work letters that:

1. Address if employees will be recalled/rehired into the same position.
2. Confirms pay rates for returning employees. Note: Employers receiving loans under the CARES Act and seeking loan forgiveness for payroll costs have certain obligations to restore and maintain compensation and benefits levels.

Additionally, if organizational structure has changed, employers may also consider determining the skills of individuals and appropriate positions to offer when returning their employees to work.

Employment contracts and/or collective bargaining agreements may affect how duties can be altered for certain employees. For example, different duties may mean that an employee who was exempt from receiving overtime pay is now entitled to receive it. Remember to factor in compliance with federal, state and local wage and hour laws and consider consulting with your legal counsel if you have any questions. All business decisions should be made on fact-based criteria, should remain consistent with your legitimate business needs, and cannot be based on reasons that violate federal, state, or local law.

Employers should consider implementing policies and practices for social distancing, which encourages employees to stay six feet away from each other whenever possible. This could include staggering employees’ on-site hours or attendance, allowing employees to work remotely if possible, and reconfiguring work sites and spaces to allow employees to be further apart. Please review your state and local health department resources and federal OSHA guidelines for any additional requirements or guidance.

Employers can require employees to wear safety equipment like face/eye protection, gowns, gloves, or other equipment suggested by OSHA, and should review the guidance published on OSHA’s website for recommended practices.

If either state law or the employer requires employees to wear protective equipment in the workplace, the employer must pay for it. Additional requirements may also apply if your business is already subject to OSHA’s Bloodborne Pathogens standard or other state or federal industry-specific requirements.

Some states now require certain employers to provide masks, other face coverings, or gloves for employees. For more information, please review your applicable state’s COVID-19 resources.

Employers should consider:

• Sending employees home immediately if they show symptoms of COVID-19. Consult with your HR professional or employment lawyer on recommended next steps.
• Exploring if, and under what circumstances, employees may work from home.
• Consulting their HR professional or employment lawyer prior to asking employees any medical-related questions, including possible temperature screening.
• Reviewing and/or determining employee eligibility for leaves of absence (paid or unpaid) under the Families First Coronavirus Response Act (FFCRA), state or local law, or company policies.
• Exploring whether to provide employees with personal protective equipment, such as masks and gloves.

If an employer chooses to offer additional pay, it must be included in the calculation of the employee’s “regular rate of pay,” which is used to determine the overtime rate for individuals who are not exempt from overtime requirements. Establish criteria for awarding this extra pay and take care to avoid the appearance of discrimination, as employment decisions, including pay changes, cannot be based on reasons that violate federal or local law. Currently, state laws and the Fair Labor Standard Act (FLSA) do not require “hazard pay”, however, there may be requirements for some government employees.

If employees were furloughed, updating their Form I-9 is generally not required. If employees were terminated, and then rehired within three years of the date their previous Form I-9 was completed, you may either complete a new Form I-9 or complete Section 3 of their original Form I-9 to indicate the rehire. When completing Section 3 for a rehire, review the original Form I-9 to determine if your employee is still authorized to work, including whether employment authorization documentation presented in Section 2 (List A or List C) has since expired (or have been auto-extended). If your employee is still authorized to work and his or her employment authorization documentation is still valid, enter the date of the rehire in the space provided in Section 3. If your employee is no longer authorized to work or the employment authorization documentation has since expired and requires reverification, request that the employee present an unexpired List A or List C document. Do not reverify an employee’s List B (identity) document. Enter the document information and the date of rehire in the spaces provided in Section 3. If the current version of Form I-9 is different from the previously completed Form I-9, you must complete Section 3 on the current version. If employees are being rehired more than three years after the previous Form I-9 was completed, a new Form I-9 must be completed.

This would depend on the terms of your bonus plan. Before making any changes or withholding payments to employees, review the terms of your plan with your legal counsel.

Employers should consider reviewing all agreements, plans, and policies to determine if any modifications are warranted regarding eligibility and employee cost-sharing. A break in service of 30 days or less within the same calendar year may result in the reinstatement of the employee’s FSA. Contributions will be recalculated to deduct the full amount by the year’s end. If there is a break in service of more than 30 days, or if the employee is rehired in a new calendar year, new FSA elections may be required. Note: Remember to also check the terms of cafeteria plans, if applicable, and consider potential special enrollment rights and qualified life event election changes (typically 30-day periods). To evaluate plan eligibility changes, consult with a third-party administrator, insurer, and/or agent and consider Collective Bargaining Agreement(s), if applicable.

Employers should consider:

• Providing a new Form W-4 in case employees want to make changes upon returning to work.
• Ensuring “new hire” employee documents (i.e., current employee handbook, emergency contact information, etc.) are properly updated and executed.
• Determining implications for 401(k), 403(b), and pension plans.
• Evaluating executive compensation and severance arrangements.

An employee’s reason(s) for not returning may make them eligible for some type of leave required by federal or state law, so it is important to engage with your employees to understand why they are refusing to return before taking any action. For example, an employee concerned about their own health condition may be entitled to a reasonable accommodation under the ADA or state law, or an employee caring for a child because their child’s school or daycare is still closed may be entitled to EPSL or EFMLA.

If your employees are raising reasonable COVID-19 safety concerns, their complaints or even their refusal to work may be protected under OSHA or the National Labor Relations Act, even if your workplace is not unionized. Discuss these issues with your legal counsel before terminating your employees or imposing any other discipline.

An employee’s reason(s) for not returning may make them eligible for some type of leave required by federal or state law, so it is important to engage with your employees to understand why they are refusing to return before taking any action. For example, an employee concerned about their own health condition may be entitled to a reasonable accommodation under the ADA or state law, or an employee caring for a child because their child’s school or daycare is still closed may be entitled to EPSL or EFMLA.

If your employees are raising reasonable COVID-19 safety concerns, their complaints or even their refusal to work may be protected under OSHA or the National Labor Relations Act, even if your workplace is not unionized. Discuss these issues with your legal counsel before terminating your employees or imposing any other discipline.

If you employ less than 500 employees, your employees who cannot work due to COVID-19 related reasons may be eligible for two weeks of Emergency Paid Sick Leave (EPSL). If your employees are unable to work because their child’s school or daycare provider is closed, they may be eligible for two weeks of EPSL and an additional 10 weeks of EFMLA. If you allow your employees to telework, they may be able to telework rather than take this leave. But if they cannot take advantage of a teleworking option due to their childcare obligations, they may still be eligible for EPSL or EFMLA leave.

This would depend on your state’s wage and hour laws and your own policies. Important considerations include whether your employees remained on your payroll during the temporary layoff or furlough, and whether your state has extended its rules relating to leave in response to the COVID-19 pandemic.

Consider reviewing your existing written leave and leave accrual policies and your obligations under any written employment agreements and/or collective bargaining agreement, if your employees are unionized. Even if employees have no accrued leave left, they still may be eligible for mandated paid leave under the EPSL, EFMLA, state law, or to unpaid leave as a reasonable accommodation for a disability.

Employers should consult with the third-party administrator/insurer and review their benefits plans to determine any waiting period requirement for health and other benefits to determine when the employee can re-enroll in active coverage, and to identify any other issues resulting from a break in service.

For questions related to the Paycheck Protection Program and loan forgiveness, please visit our Maximizing Paycheck Protection Program Loan Forgiveness hub.