After COVID-19 abates, employers may determine that they cannot return all employees to the workforce. Some employers may need to recall employees on a slower timeline depending on demand, social distancing imperatives, and the timeline for production. Others may want to recall everyone, but may need to evaluate the terms of employment.
When evaluating these issues, employers should consider their obligations under their agreements and policies, including any collective bargaining agreements. Also potentially significant will be the provisions of the federal Worker Adjustment and Retraining Notification (WARN) Act, and similar state and local laws, with regard to when and under what circumstances temporary furloughs become employment losses that can trigger advance notice and/or severance pay obligations. Employers should also consider potential adverse impact issues when selecting who to return from furlough.
Some employees may express hesitation to return to work before a vaccine is widely available. In addition, employers should remain cognizant of their obligations under the Americans with Disabilities Act to discuss potential reasonable accommodation of employees with disabilities.1 Further, employers should be aware that employees who return from furlough can become eligible (potentially immediately) for paid leaves under the Families First Coronavirus Response Act and other similar state statutes.
Recall or Rehire Paperwork
When preparing to return employees from furlough, employers will want to identify the paperwork that needs to be completed to return employees to work.
To determine the documentation needed with employees returning from furlough, the employer first should review the length of a furlough. It is generally recommended that employers refresh their hiring paperwork for employees returning from a furlough of six months or more. Note that this is “rule of thumb” guidance, rather than a fixed rule. Note also that this will not be appropriate in all cases, particularly if the employer is relying on continued furlough status (beyond six months) to avoid triggering an “employment loss” for WARN Act purposes.
If the furlough lasted fewer than six months, employers should review the particular circumstances of the furlough – whether there are indicators that the employer and employees intended employment to continue, or whether it appears that the employer’s or employee’s intent was to sever the employment relationship – in determining whether it is appropriate to treat the recalled employee as a new hire for paperwork purposes.
It is recommended that employers provide all returning employees a recall letter at least a week or more in advance of their return to work with a date by which the employee must respond to the employer regarding their intention to return to work. We anticipate that some employees may have found other employment or relocated during the COVID-19 pandemic. Providing these letters a week or more in advance will assist the employer and employees in planning for return.
Background Check Upon Return From Furlough
At the time of recall, some employers will be required to rerun background checks due to legal or customer obligations. Some employers may desire to rerun background checks for other reasons.
Before ordering a background check report from a background check company for a recalled employee, the employer must ensure that it has a valid authorization for the background check from the employee. Background check authorizations drafted in recent years often include “evergreen language,” providing that consent is given for the employer to run a background check at any point during the employment relationship. Before rerunning background checks, employers should review the authorization and corresponding documents, especially the requisite disclosure about the intention to obtain a background check, to help ensure the documents satisfy current legal standards and have evergreen language. If the authorization on file does not have evergreen language, or appears outdated, an employer must obtain a new authorization. Employers should update these documents with the assistance of counsel if there is any question whether the employer’s documents have been updated recently. FULL ARTICLE