How to Reopen a Business and Recall Employees

With COVID-19 still raging through the country and unemployment projected to hit 32% and affect 47 million people, recalling employees may seem to be one of the last things on employees’ minds right now. However, it is something that all companies need to seriously be concerned about.

Moreover, with President Trump’s plan to reopen the economy and Governor Abbott’s plan to reopen Texas it is something that all Texas employers need to start to consider. Governor Abbott stated that retail stores will be able to open under a retail-to-go plan on April 24, certain “nonessential” surgeries will be able to be performed, and state parks were opened on April 20. There will be additional announcements on April 27 and later as the plan to reopen Texas develops.

 So, what should companies do when they reopen?

Issues that Companies Face When Reopening and Recalling Employees

There are a number of issues that employers face when they are trying to reopen. If you read my COVID-19 article, article on protecting essential workers, or the WARN article, then you understand some of the issues that companies must consider when they reopen and recall employees.

Here are some additional issues to consider:

Avoiding WARN Act Issues

If you temporarily laid off your employees and intended to bring them back (I hope you listed an intended date of return on your notice to them if WARN applied), then you need and ought to take certain steps. The most important step is recalling employees to ensure that you do not meet one of the thresholds where WARN would have been triggered. As a reminder, the DOL states that

[a] covered mass layoff occurs when 50 to 499 employees are affected during any 30-day period at a single employment site (or for certain multiple related layoffs, during a 90-day period), if these employees represent at least 33 percent of the employer’s workforce where the layoff will occur, and the layoff results in an employment loss for more than six months. If the layoff affects 500 or more workers, the 33 percent rule does not apply.

If you laid off employees temporarily and want to bring them back, you must be extremely careful and act quickly.

Keeping in Contact with Laid Off Employees

You should be in contact with your employees. Now is a time to show them that you actually care about them. If you had a temporary layoff or are now recalling employees that were permanently laid off, then you should do things that actually demonstrate that you meant you would like to bring them back and show that you care so that you get the employees back when that time comes.

Some simple things that you can do to show that you care and keep in contact is to:

1. Update the contact information (phone numbers, email addresses, and mailing addresses) for all employees
2. If you gave a date when you expected the closure to last until then consider reminding employees and checking in before that date to inform them of what they will need to do to return to work and whether the opening will proceed on that date.
3. Write and send letters of recommendation for former employees if they are applying for jobs.
4. Do not contest unemployment and consider filing for mass unemployment while they are not working for you.
5. When you contact employees you need to ask how they are doing. They are human. They are going through a lot. Businesses that show that they care about their employees are more likely to succeed.

Recalling Employees

Companies need to follow their protocols to recall employees.

If a company will rehire employees that were previously laid off or recall employees that were furloughed, then the most important thing a company needs is some form of objective criteria to determine which employees they will recall if they do not recall everyone. Typically, employers would first look at their employee handbook to see whether it outlines any return to work policy. Unionized companies must follow their collective bargaining agreement. If there is no policy in place, then employers should attempt to develop a policy that they will follow.

What criteria should you consider  before you bring employees back when you are not bringing everyone back?

1. What jobs need to be brought back? Are there any jobs that do not need to be brought back?
2. Will any employees need to come back before other employees? For example, some machinery may require maintenance before it is able to operate again. You may need to recall your maintenance staff first so that they can get any machinery that has been turned off up and running again.
3. What skills do you need? Some employees may have cross-trained and be able to fill in other roles which could be important if less employees come back to work.
4. Will you use past evaluations to determine what employees should not be brought back in the same job? How will you measure performance?
5. Are you going to use seniority?
6. Are there any employees that you are not going to bring back? You should document why you are not bringing back certain employees.

The most important thing to do is to document the reasons that you are bringing back certain employees. While this may seem like an easy task, how you conduct a recall will have major implications on potential discrimination claims and morale issues, and potentially WARN Act issues if you fail to recall enough workers.

Special Recall Rules for Employers with Collective Bargaining Agreements

If you have a collective bargaining agreement, then you must follow the requirements within it to recall employees. Typically, a collective bargaining agreement requires that employers recall employees by seniority in each position. If everyone is not recalled, then there may be obligations to bargain with the union.

Age Discrimination Issues

Companies need to carefully review who they plan to recall and review whether any disparate impact occurs on employees. Sometimes companies choose to use salary as a factor for returning employees. This can cause a situation where the oldest employees, typically those that have worked for a company the longest and thus have the highest salary, are not recalled because the company is trying to save money. Companies must be careful to justify the reasons that they are bringing back certain employees and not others. This kind of situation could cause an age discrimination claim.

Families First Coronavirus Response Act Issues

Any employee that is recalled will be immediately eligible to take sick leave under the FFCRA. Employees are not eligible for expanded family leave until they have been an employee of the company and on the payroll for at least 30 days. Any recalled employee will be eligible to take sick leave under the FFCRA right away and the company will need to front the money to pay for it. This may be especially difficult for companies that have been closed for more than a month.

Preparing to Reopen Your Business

There are a ton of considerations before any business reopens. A lot of it is specific to the particular business. One issue is employee safety. Lear, a Fortune 500 company that produces automotive seating and automotive electrical systems, has put together a great guide that can help companies that are preparing to reopen their business.

There are a number of factors to consider when a business reopens:

1. Is there enough work? Can your business reopen, or should you file bankruptcy?
2. How much work is there? Does your business need to bring back only certain parts of the business that are likely to be the most profitable? Will you cut other parts of the business?
3. Are supply chains up and running and able to provide the business with the resources that you need to make your product or operate your business?
4. Are your customers operating? Is there a market for your product or business? Does the business need to wait for customers to reopen first?
5. Have you been keeping in touch with your employees as described above to ensure that you will be adequately staffed when you reopen? Some employees may not wish to come back especially if they are collecting more on unemployment. It is entirely possible that you may need to hire new/additional employees.
6. Have you updated your procedures and practices before you plan to reopen? Have you reviewed all the guidance from OSHA and the CDC that apply to your business? Implementing them to the extent possible at a business is critical to protect employees and avoid potential claims against the business for failing to provide a safe working environment, worker’s compensation claims if employees fall ill, and premise liability claims from customers that get sick?
7. Will you train your supervisors and cleaning staff to follow guidelines from OSHA and the CDC to ensure that cleaning is properly done? Have you identified areas that will need to be more frequently cleaned? Have you instituted new policies to space out employees in hallways, lunchrooms, and their workstations as is possible in your business? Will you institute staggered lunches?
8. Have you updated your handbook to include policies related to leave under the FFCRA?
9. Have you obtained the necessary safety supplies to clean areas and protect your employees including infrared (no contact) thermometers, masks, gloves, and additional cleaning supplies? Will you be using temperature checks when employees enter the facility?
10. Have you trained supervisors to handle employee accommodation requests? For example, an employee with a heart condition may have a disability that needs to be accommodated. Are supervisors prepared to address any disability accommodation requests related to the coronavirus?
11. Do you have a plan in place to let employees know all of the extra steps that you are taking to protect them and to receive feedback on any safety concerns? Are you posting flyers related to the steps that you have taken? Again, Lear has provided flyers that can be used.

These suggestions barely begin to scratch the surface of issues that businesses must consider to reopen. Every business is unique, and it is likely beneficial for businesses to seek outside guidance about their specific business as they prepare to reopen and recall employees.

Conclusion

With an over 20% “real” unemployment rate, many people in the country are suffering. This is not going to end soon. A lot of capital has been lost, supply chains have been destroyed, and the economy has changed forever. The more preparation businesses do to reopen, the more likely they will be successful in doing so.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.