As Phase 1 of Governor Desantis’ “Safe. Smart. Step-by-Step. Plan for Florida’s Recovery” begins, businesses should have a plan to return employees to work. Such plans should consider various EEO laws, the Occupational Safety and Health Act, the Paycheck Protection Program, the Families First Coronavirus Response Act, the Family and Medical Leave Act, 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.
Businesses intending to call back employees in stages should make decisions regarding which employees are part of the various stages based on legitimate, non-discriminatory reasons. Civil rights statutes apply to all employment decisions, and employers should avoid making return-to-work decisions 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 return-to-work decisions, at least for the short term, the Equal Employment Opportunity Commission is affording employers some measure of flexibility in their 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. 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.
Opening for business after a short-term shutdown will not relieve an employer’s responsibility to provide qualifying employees with Paid Sick Leave and Expanded Family and Medical Leave required by the Families First Coronavirus Response. Keep in mind that the payroll expenses associated with Paid Sick Leave and Expanded Family and Medical Leave do not count towards PPP loan forgiveness. Employers should also consider how they can provide employees a safe work environment. OSHA has been directed to confirm an employer’s efforts to comply with the business guidelines provided by the CDC, and will investigate complaints of unsafe work environments due to COVID-19.
In order to avoid OSHA claims–or even potential negligence claims–employers should require that employees in theworkplace observe infection control practices. Employers should follow social distancing, regular handwashing, and other disease prevention measures.
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, such as additional training on how to fit and care for masks. 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 after 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.
If employers have PTO/vacation programs, they should consider how to handle time off when employees return. Will a temporary freeze in the use of 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 remaining accrued PTO/vacation?
As you can see, there are several issues to address and variables to consider when reopening. Williams Parker is closely monitoring legal developments and providing guidance. Our Business Solutions group helps businesses navigate uncharted territory as they face issues resulting from this crisis. For more information, please visit www.williamsparker.com.
Jennifer Fowler-Hermes is a board certified labor and employment attorney with Williams Parker. She can be contacted at [email protected] or (941) 552-2558.