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24 June 2020
The COVID-19 pandemic has put unprecedented strain on organisations of all sizes across all industries.(1) The uncertainty of the new normal is leading some employers to consider extreme, and often unnecessary, new policies in anticipation of the eventual return to work. To properly navigate the complexities of these novel COVID-19 employment issues, employers need innovative but practical solutions.(2)
As businesses reopen, all employment-related decisions will be subject to heightened scrutiny, particularly those that affect only a portion of the workforce. Employers must have clear policies and communication detailing how employees will be brought back to work and ensure that such policies are based on non-discriminatory criteria. If objective criteria were used in making hiring, furlough or termination decisions when stay-at-home orders were initially implemented, employers should consider using a similar framework for return-to-work decisions while also being mindful of eliminating unconscious bias. To the extent that requests for accommodations are made, employers should follow Equal Employment Opportunity Commission (EEOC) guidance and ensure engagement in the interactive process.
Many employers can bring back only a portion of the workforce in the initial phase of reopening. They should consider whether their return-to-work policies or protocols, including deciding who returns and when, may have a disparate impact on certain protected workers. While a formal impact analysis following EEOC guidance need not be done, an informal 'gut check' of employment decisions can help to avoid unconscious bias and ensure that returning employees reflect the diverse workforce that many businesses have worked hard to maintain. Return-to-work protocols must be implemented consistently for all employees and without discrimination, harassment and retaliation.
When bringing employees back to the office or back from furlough, employers should send a written notice of recall or return to office, addressing:
If considering salary reductions, employers must remember that:
Employers should evaluate the job duties and responsibilities of employees who are classified as exempt but who may have had changes in their role because of COVID-19 to ensure that their return-to-work duties still meet the requirements of the applicable exemption. Employers must ensure that systems and policies are in place to track hours for non-exempt employees and follow applicable state meal and rest break requirements.
As employees return to work, employers must prevent workplace harassment and discrimination. Employers should remain familiar with anti-harassment and anti-discrimination policies and communicate to all employees that harassment and discrimination are illegal and will not be tolerated in the workplace. For example, while fear of COVID-19 is valid, it should not and cannot be misdirected against an individual because they fall into a protected category. This applies to employees working physically in the office and those who continue to work remotely. Training supervisors of the policies and employees on available reporting channels is also advisable.
Under the federal Worker Adjustment and Retraining Notification (WARN) Act, most employers with 100 or more full-time employees must provide 60 calendar days' advance notification of plant closings and mass lay-offs. There are exceptions to the federal WARN notice requirement if the closing or mass lay-off is caused:
However, even if an exception applies, any event that triggers WARN still requires that notice be provided to affected employees. Some states also have mini WARN acts that may have different notice requirements. Employers should work with counsel to ensure that they are fully complying with federal and state laws.
For further information on this topic please contact Ellen M Bronchetti at McDermott Will & Emery's San Francisco office by telephone (+1 628 218 3800) or email (email@example.com). Alternatively, contact Lindsay Ditlow at McDermott Will & Emery's New York office by telephone (+1 212 547 5400) or email (firstname.lastname@example.org). The McDermott Will & Emery website can be accessed at www.mwe.com.
(1) This article is based on a recent webinar, available here.
Julie H McConnell, associate, assisted in the preparation of this article.
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