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COVID-19 Thoughts On The Coming Reboot – Not A Shoo-In? – Questions Not Frequently Asked Now, But Which Should Be

April 30, 2020

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While issues of timing will no doubt occupy popular news sources for the immediate future, there can be no question as to the inevitability of efforts to reboot the nation’s economic sector as the need abates for strict coronavirus-driven restrictions.

  • Closings will become re-openings.
  • Layoffs will become recalls.
  • Suspended P.O.s will become rush orders.
  • Chaos will become order.

Maybe there is little hope for the last bullet point inasmuch as the reboot effort will be as unprecedented as the circumstances which delivered us to our current position. All employers, and their stalwart HR staffs, will be confronted with the uncertain task of quickly and efficiently bringing back on-line previously fine-tuned systems for the production of goods and services which have been forced over the past weeks into much-reduced activity.

When the reboot is initiated, things will move quickly.  It will come with its own package of issues, some of which may be as challenging as those faced in the weeks preceding it, if not more so. This is why it is advisable to look ahead and anticipate those things which are likely to become the stuff of FAQs for the reboot

What sort of questions?  Here are some that are sure to arise:

  1. I recalled all my employees on temporary layoff, but some have refused to return, citing concerns with whether it is safe. What can I do?  Can I terminate them and hire replacements?  What if those refusing to return are in known “at-risk” categories?

  2. Assume (a) an employer has furloughed or laid-off workers, (b) is ready to bring back some but not all, and (c) some of those being considered are in protected classifications and are otherwise about equally qualified to do their job. How should the employer approach the decision as to which employees to bring back?  What needs to be considered?  Would it be advisable for the employer to create a “blind pool” of employees with somewhat equal ability, and randomly draw out of this group?

  3. Should the employer consider replacing laid off (or furloughed?) employees with new hires rather than people who had previously worked there?

  4. If we have a union contract, are we required to include the union in the decision-making process as to how to implement the planned recall? Whether or not we are required, should we?

  5. Can I ask a returning employee if he or she had the virus while on temporary layoff?

  6. Should employers screen returning employees with regard to contact with anyone with Covid-19, including members of their households?

  7. Can I, and should I, enforce my employee handbook policy which states any employee returning from a leave of absence must take and pass a physical examination intended to determine continue physical ability to perform essential job functions without creating a risk to himself/herself or others in the workplace?

  8. I employ one or more truck drivers subject to the physical qualification provisions of the Federal Motor Carrier Safety Administration. My drivers have been on temporary layoff.  If I recall them, do I have to go through a physical re-qualification process?

  9. Several re-called employees, particularly those in the 60 plus age group, have asked if I can make sure that they do their work in isolated areas, perhaps even remotely. Do I have to do that?

  10. If an employee refuses to return should he or she be terminated? Can I oppose his or her application for receipt/continuation of unemployment benefits?

  11. Employees returned, but soon afterward several of them got together and approached their manager saying the company has not done enough to assure their safety and that they will not return to work until it is safe. Can I terminate them?

  12. Can I fire an employee refusing to travel for business purposes?

  13. What duties do I have to make sure that the Covid-19 is not reintroduced into our facility? Are there any OSHA requirements, whether under the “General Duties” provisions or otherwise?

  14. Can an employer impose a rule requiring employees to notify the company if they have been exposed, have symptoms and/or have tested positive for Covid-19?

  15. Can an employer force employees to wear masks (absent a pending executive order or health order)? Can an employer fire them if they don’t?

  16. Can an employer take employee temperatures at work? What if an employee refuses?

  17. Is an employer required to provide masks, wipes, gloves, hand sanitizer, etc.?

  18. If an employee calls in sick, can the employer ask if it is Covid-19 related? Should the employer do so?

  19. Can an employer at a non-food business require employees to wash their hands multiple times each day?

  20. Should an employer require all existing active employees, all new employees and all returning employees to be tested for Covid-19? When?  Regularly?

  21. In an interview for hire, can I ask a prospective employee if they (a) had the Covid-19 infection or (b) have a compromised immune system?

  22. What if I recall employees, and one or more of them becomes ill with the virus?  Do I have any liability exposure?  Would I be protected against civil claims by the “worker comp bar” that typically insulates an employer from an employee’s negligence claims?

  23. If an employee travels on business and contracts Covid-19, is that a workers’ comp issue?

  24. The company’s cash position has been weakened by these events. Can I unilaterally change employee’s compensation for some interim period while we get going again?  If I do, does this affect the consequences of an employee’s decision to decline immediate return to work?

  25. If one employee comes down with Covid-19 in the future, do I have to shut down the business or can we continue? If we continue, what must the employer do to ensure employee safety?

  26. If an employee has been exposed to Covid-19, and therefore should stay at home for 7-14 days, should or must they be paid for the time at home (assuming they can’t work at home)? How would this differ between hourly and salaried employees?  How would OT apply to their 7-14 day period?  Would those stay-at-home hours be counted toward minimum hours required to qualify for 401(k) or medical insurance benefit plans?  What about meeting the 1,250 work hours required under FMLA (assuming the employer meets the minimum numbers of employees for FMLA to qualify)?  Should the employer confirm the employee’s claim of exposure?  Affidavit?  Doctor’s note?

  27. How will my employee handbook need to be revised in light of Covid-19 or similar pandemic issues?

  28. The ADA (and other laws) requires the posting of specific employee notices. Will the required notices have to be changed as a consequence of the Covid-19 experience?

  29. We sought and obtained the SBA Payroll Protection Program (PPP) loan. Several employees turned down written offers to return to employment and we are wondering how this impacts determinations regarding the PPP’s “forgiveness” element?

These are examples of what we at D&F forecast to be the subject matter of FAQs when the reboot is initiated.  There are sure to be many more.  If you are looking ahead, and if you think it may be beneficial to prepare for one or more of these issues as you approach reboot, feel free to contact D&F and speak to any member of its Labor and Employment Law Practice Group.