After managing the devastating impact the COVID-19 response has had on business, including the labyrinth of forgivable and non-forgivable government loans, businesses are now tasked with formulating a strategy for restarting the bulk of their operations. With that comes the perilous task of returning employees from furloughs, posting jobs, and changing the job functions for those currently working.
Here’s an overview of a few key items to consider as your business heats up and you begin returning your workforce.
Who Comes Back from the Furlough
Most employers will not be able to return all furloughed employees at once, so they’ll need to determine a method for selecting which employees to return first. This is, perhaps, the riskiest aspect of returning furloughed employees — selection. While some employers will be tempted to return employees who have a family to support or who have specific health or other financial circumstances, realize these criteria are rooted in prohibited characteristics (i.e., socio-economic circumstances, family status, etc.).
Employers must establish an objective method for determining which employees to return and document how they’re applying that method to each employee. An employee’s performance, seniority and documented misconduct are selection criteria that are relatively objective and are rooted in the employee’s ability to perform — a significantly safer approach. Additionally, be aware of demographic trends regarding who you return versus who you keep out: Are you returning a disproportionate percentage of your employees from a specific age, gender or race? Of course, this is problematic.
Testing Employees for COVID-19
While it may be tempting to want employees to get tested for COVID-19 prior to returning, this is not feasible under the current testing climate. Rather, a better practice seems to be to follow your typical process of sending employees home who appear ill and managing them using the new Emergency Paid Sick Leave guidelines in the Families First Coronavirus Response Act (FFCRA).
The CDC has also issued guidance for essential businesses that interact with the public (e.g., food service, healthcare, utilities, etc.) regarding how they should handle potentially ill employees. Make sure to follow CDC and your county health department guidance regarding best practices.
Making Significant Changes to an Employee’s Job
There’s significant complexity when changing an employee’s job as he or she returns from a furlough. As long as the employee is at-will (e.g., is not a contractual employee), you have greater freedom to change the employee’s role, but be prepared to defend why that job was changed versus other employees’ roles. Additionally, be very careful with cutting only some employees’ compensation as they return from a furlough.
Following the principles discussed earlier, changes to the job should be done based entirely on the needs of the business. The organization should be prepared to defend the methodology applied in selecting which employees are impacted and should guard against this facially neutral methodology disproportionately impacting employees of a particular protected category (i.e., race, gender, disability, etc.).
Eric Knott is a professor of business at Arizona State University’s W. P. Carey School of Business and is the principal at FinePoint HR consulting firm. Knott is the three-term president of the Society for Human Resource Management of Greater Phoenix, has sat on the board for various business entities across the state, and is the vice-chair of ASBA. He can be reached at finepointhr.com.
