With re-openings on the horizon, businesses should prepare a plan for returning employees to work. In making such plans, employers should consider the various EEO laws, the Occupational Safety and Health Act (“OSHA”), the Paycheck Protection Program (“PPP”), the Families First Coronavirus Response Act (“FFCRA”), the Family and Medical Leave Act (“FMLA”), along with employers’ own PTO/vacation policies, and more. This summary provides a quick overview of several issues that employers should consider when developing a plan for their employees to return to work.
Some employers may plan to call back in employees in stages or waves as business permits. If so, those employers should take care that they decide which employees are part of the various stages or waves based on legitimate, non-discriminatory reasons. Civil rights statutes such as Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, and the Florida Civil Rights Act still apply to all employment decisions–including decisions on who to bring back to work. Employers should avoid making decisions on who to return to work based on age, disability (actual or presumed), national origin, marital status, sex, pregnancy, or other protected characteristics.
Even though the civil rights statutes are applicable to these employment decisions, it is worth noting that, at least for the short term, the Equal Employment Opportunity Commission (“EEOC”) is affording employers some measure of flexibility in employers’ efforts to keep COVID-19 at bay. For example, businesses may be permitted to require employees to submit to a COVID-19 test before returning to work. In an update to its COVID-19 guidance on April 23, 2020, the EEOC provided the following answer to this question:
…. employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.
The EEOC also issued guidance about how to conduct COVID-19 testing and direction on how to handle employees that report illness, take time off due to illness, or subsequently return to work following an illness.
Additionally, opening for business after a short-term shut down will not generally relieve an employer’s responsibility to provide employees with Paid Sick Leave and Expanded Family and Medical Leave required by the FFCRA. Such leaves are still required for qualifying individuals through December 31, 2020. And importantly, the paid leave for either Paid Sick Leave and Expanded Family and Medical Leave are not included in the payroll costs handled through the PPP. Unlike payments for other types of leave, those amounts do not count towards loan forgiveness.
Employers should also consider how, to the extent possible, they can provide employees a safe work environment. OSHA has indicated that it will investigate complaints of unsafe work environments due to COVID-19. OSHA investigators have been directed to confirm an employer’s efforts to comply with the business guidelines (or guidelines for a specific industry) provided by the CDC.
In order to avoid OSHA claims–or even potential negligence claims–employers should still require that employees observe infection control practices in the workplace to prevent transmission of COVID-19. Thus, employers should still follow social distancing, regular handwashing, and other disease prevention measures. Further, employers should conduct a risk assessment based on OSHA and CDC guidelines to ascertain if masks should be worn by any employees and, if so, what additional requirements may be applicable. The additional requirements may include additional training on how to fit and care for masks. Finally, employers should analyze their procedures to determine if there may be alternatives that allow for improved compliance with CDC recommendations.
It is likely that there will be employees resistant to returning to work even when any stay-at-home orders are lifted. Employers should have a plan about how to evaluate each circumstance to handle these situations in accordance with the law.
Finally, if employers have PTO/vacation programs, they should consider what position to take on the use of PTO/vacation when employees return. Will a temporary freeze in the use PTO/vacation be required to get operations back on track? Will employees that were on extended furlough have any accrued remaining time off? If so, will they be able to carry over any of their accrued time off? Will employers unable to bring everyone back at once require employees to use their remining accrued PTO/vacation?
As you can see, there are several issues to address and variables to consider when reopening. The attorneys at Williams Parker stand ready to help employers review the options and consider how to proceed.
Williams Parker has launched a multidisciplinary task force of lawyers across the firm to advise on issues arising from COVID-19. This team is closely monitoring legal developments and guidance from federal, state, and local government and public health officials. For the latest updates, please visit our website.