Across the country, workplaces are reopening as states dial back strict stay-at-home orders triggered by the COVID-19 pandemic. And that leaves business owners to navigate a fluid situation that involves a mishmash of federal, state, and local government regulations; unknowns about the continued spread of the coronavirus; and unprecedented anxieties in the workforce.
“This is a tough time to lead,” says Bennie Covington, chief people officer of Denver-based financial services firm Integrated Financial Settlements. “There’s no best practice. No one has done this before… And we do have an obligation to have a safe work environment for our employees.”
Covington plans to begin letting some employees return to the company’s 65-person headquarters starting 30 days after Denver and the state of Colorado lift their bans. “We’re much more conservative,” he says.
But there’s no one-size-fits-all plan for how to safely recall employees back to the workplace. As employers prepare, the key is to not rush into it, according to lawyer Whitney M. Dowdy, a shareholder with Baker Donelson in Memphis, Tennessee, who specializes in employment law.
“This is tough for employers,” Dowdy says. “It’s a growing list of things that they have to be mindful of and have to pay attention to when they bring their employees back.”
5 employer questions about recalling workers
Here are answers to five top questions that employers raise as they contemplate asking workers to return.
1. Can employers screen employees returning to work for COVID-19 or require them to do it themselves?
They can, Dowdy says. According to current guidance from the Equal Employment Opportunity Commission (EEOC), employers can screen workers for COVID-19. Some state executive orders actually mandate screenings, and some localities have also set screening requirements. EEOC-allowed screenings include checking workers’ temperatures, asking questions about any potential COVID-19 symptoms they may be experiencing, and even administering a COVID-19 test.
In workplaces where it isn’t practical to check each employee, some employers are requiring workers to self-certify that they aren’t symptomatic and haven’t been exposed to the illness. “That’s definitely something I would recommend,” Dowdy says.
Be aware, though, that employers may need to compensate their employees for the time spent going through screenings or completing such certifications. It is also worth noting that the screening currently allowed by the EEOC may differ once this situation is no longer considered a pandemic.
2. Can employers bring some employees back, but not others?
Many businesses are doing so, and labor laws allow it. “You don’t want a considerable mass of people together in your office yet,” Dowdy says. “Especially while we’re in this phase one of reopening.”
As portions of your workforce return, however, you’ll want to be mindful of not running afoul of anti-discrimination laws, Dowdy cautions. That can happen when workplace decisions have a disparate impact on any one group of employees. For example, employers should not make decisions about who returns to work based on who they perceive to be at-risk or part of a vulnerable population. For example, employers should not restrict the return of employees based on age, whether a woman is pregnant, or whether an individual has an underlying health condition.
To avoid this pitfall, employers must be able to explain why some workers are returning and others aren’t. In some cases, an employer might bring back a specific department because its workers can’t work remotely. In other cases, employers can alternate workweeks for different groups of employees, so everybody has a chance to return.
3. Can employers set requirements for wearing face masks, social distancing, and other safety precautions?
Yes. In fact, most state and local orders require it, Dowdy says. Some even mandate that employers provide face masks and other protective gear to their workers. “A lot of these things aren’t optional,” she says. “Even the places that aren’t requiring them, those employers can make those a requirement.”
As workers return, employers must clearly communicate the new policies so all workers understand what’s required. If you do set new policies, we recommend creating a written policy that all workers must read and sign before returning to work. If an employee fails to comply, you may need to discipline them or simply send them home.
“Not only would they be in violation of the policy at that point, but also potentially putting others at risk,” Dowdy says. “I don’t think this is an area that employers can be lenient on.”
In choosing to discipline or send those employees home, there may be other wage and hour concerns to consider, such as potential reporting time pay requirements or reimbursements for personal protective equipment (PPE).
4. How should employers treat workers with obligations at home?
Schools and child care centers are closed, summer camps are being canceled, and some employees care for older relatives, who may be at a higher risk for serious complications from COVID-19.
For workers who can’t work remotely, employers will need to check the Families First Coronavirus Response Act, which provides paid emergency leave for employees who have no child care because of the pandemic, are required to self-quarantine, or have to care for another person who must isolate, among other reasons. The federal law is in effect until the end of December. Employers should also review state and local laws which may provide for other or additional forms of mandated leave in these instances.
“Make sure that you are in line with… those benefits. And you need to check and make sure that the employee is eligible for those and you are letting them know what eligibility means and what time off they can have,” Dowdy says.
For workers who can work remotely, Dowdy encourages businesses to let them continue. But, she says, it’s important that if employers want workers to return to the office eventually, they must make clear this isn’t a long-term arrangement. “You’ll need to let them know that you’ll keep that line of communication open with them,” she says.
5. What can employers do when employees refuse to return to work?
Dowdy recommends flexibility, especially in the early days. If workers are productive while working from home, let them stay where they are, she says.
But, as we move into further phases of reopening, messaging to employees about everything you’re doing to keep them safe at work is critical, so they’re more comfortable about returning.
Dowdy recommends outlining your plans for more regular office cleanings, what sanitation supplies you’ll have on hand, and what personal protective gear and social distancing will be required. The Occupational Safety and Health Administration (OSHA) recently released new guidance on preparing workplaces for employees, including infection prevention measures, safe work practices, and how to develop an infectious disease response plan.
In Santa Monica, California, the leaders at Hylink Digital Solutions, a digital marketing agency with 50 employees in the office, hope to bring back some employees by the end of May, but they’ve already made plans for more rigorous office cleanings—going from weekly to daily—and to have extra cleaning supplies on hand for their team. “If someone wants to clean their desk, they will have all the tools they need,” says Amanda Fain, Hylink’s people operations manager.
As restrictions ease, Dowdy says, an employee may continue to express concerns about returning to their physical workplace. If you require an employee to return but they continually refuse, it may ultimately lead to a voluntary resignation, Dowdy says. But first, she recommends having a one-on-one conversation with them.
“Before you get to that point, you want to have some conversations so you can understand what the concerns of the employee are and see if you can address them,” she says. “Is there something you can do to make them more comfortable, so they are on the same page about returning?”
Exercise caution if someone raises a safety concern; if you are later thinking of terminating that employee, it may be seen as retaliation for raising workplace safety concerns. Instead listen to the employee and consider whether you can continue to support teleworking. Some employees may also choose to resign.
Best practices as employees return to work
As business owners move forward with their return-to-work plans, here are four tips to make the transition go smoothly.
1. Write everything down.
Business owners are working at a frenzied pace, reacting to new rules and guidance daily. In case somebody raises questions months from now, document everything you do, Dowdy says, from the policies you put in place to the screenings you conduct and sanitation products you provide.
“You want to make sure that you’re documenting those so that if someone raises a question, ‘Did you do enough to keep your employees healthy and safe?’ you can articulate everything you did, and here’s the list,” she says.
2. Don’t forget mental health.
These are stressful times, says Kimberly Prescott, a human resources consultant and president of Prescott HR. Offer paid time off, mental health benefits, and flexible schedules. Encourage employees to log into the Employee Assistance Program and read an article that resonates with them.
Find ways to connect with your employees—even virtually, if only a portion of the team is back in the office—to build morale. Step up rewards for those who do good work. “Someone taking the time to think about you as an individual can definitely be a bright spot,” Prescott says.
3. Communicate. And then communicate some more.
Not everybody is going to be pleased with the decisions employers make. Some workers called back won’t want to return; others may be ready now but have been asked to remain at home.
“No reasonable employee is expecting their boss to know the ins and outs of the pandemic and what’s ahead,” says Jessica Lambrecht, founder of The Rise Journey, an HR consultant. “But they do expect to understand what information their employer is working with and how they’re making decisions. And I think that level of candor is really helpful, even if the employee disagrees.”
4. Encourage feedback.
Through regular virtual meetings and via email, Hylink Digital Solutions’ employees can offer their thoughts on what’s next. That’s crucial, Fain says. “It all goes back to the trust and comfortability of the employees. Employers allowing them to have a voice really helps to make sure that not only the employees feel safe, but the company is aligned as a whole.”