Last week, Governor Gavin Newsom announced that the State of California can begin to move into Stage 2 of re-opening business and economic activity as the country continues to deal with the fallout from the COVID-19 pandemic.  Pursuant to new guidance from state and local authorities, certain businesses, including some retail sales, manufacturing, and logistics companies, can resume operation with limitations.  Other businesses will probably be authorized to re-open in the coming weeks. 

In order to re-open and resume operations successfully, employers should consider numerous issues and develop a plan tailored to their specific circumstances.  Re-opening plans will vary based on the size, nature and location of each organization, but prudent employers will consider the following steps and issues as they prepare to re-open and expand their operations. 

Step One:  Identify the applicable rules and form a team to oversee your Return to Work project

As a first step in planning a return to work, employers should identify the orders and rules applicable to them and appoint a team to lead and coordinate the effort.  In California, employers should be mindful of orders and guidance issued by federal agencies such as the Centers for Disease Control, OSHA, the Equal Employment Opportunity Commission and the Department of Labor, as well as Executive Orders from the Governor, orders from county Directors of Public Health, and cities. 

A cohesive, thoughtful plan may require consideration of a wide variety of issues.  As a result, employers should consider seeking input from employees with expertise in human resources, IT, facilities, operations, and law.  Teams charged with planning an organization’s return to work should coordinate closely with one another, and be prepared to adjust plans as needed. 

Step Two:  Select the employees who you will ask to return to work

Selecting the employees who will return to work is one of the most important and sensitive decisions to be made in the planning process.  In some situations, an employer may want to reinstate all of its employees to work.  In other situations, however, an organization may look to reinstate only a portion of its workforce, or reinstate employees in stages. 

If an employer will reinstate only some of its employees, it should define criteria that will be used to select the employees to be reinstated.  Employers may consider criteria such as experience or demonstrated ability in essential skills, past job performance, cross-training, or longevity.  Employers should not base a decision on whether to offer reinstatement to an employee on protected legal characteristics such as age or medical condition, however. 

Additionally, although an employee’s health or medical condition may influence his or her ability or willingness to return to work, employers should not base decisions on whether to offer reinstatement upon health or medical factors.  Instead, employers should determine the criteria they will use to identify the employees they will offer to reinstate, select employees based on those criteria, and allow employees to decide not to return if, because of their health or other factors, they are unable or unwilling to do so. 

In some cases, it may be productive, after identifying the employees who will be invited to return, to survey their readiness and concerns about returning to work in order to help ease the transition process.  If an employee indicates that he or she is fearful of returning (and particularly if the employee is at high risk due to a compromised immune system, an underlying health condition, or age), the employer should attempt to address the employee’s fears and, if the employee remains uncomfortable returning to work, consider whether to accommodate the employee by granting an unpaid leave of absence rather than terminating employment.  If an employer grants a discretionary leave of absence to an employee who is unwilling to return to work out of fear of becoming sick, the employer should clearly communicate whether it will preserve the employee’s job during the leave.  In many cases where the employer does not guarantee reinstatement to employees who decline to return when work becomes available, it may make sense to simply re-visit the issue of reinstatement based on the company’s staffing needs when the employee is comfortable returning, rather than resorting to immediate termination. 

Employers should also remember that employees may be eligible for a leave of absence pursuant to various laws as businesses resume operations, and they should be prepared to grant leaves as required.  Employees may qualify for leave under the Family and Medical Leave Act, the California Family Rights Act, the Americans With Disabilities Act, and/or the recently enacted Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.  (Our previous Advisory regarding the new legislation is available here.)  In contrast with the discretionary leave mentioned above, if an employee qualifies for leave under one of these laws, employers must be mindful that, with few exceptions, the employee will be entitled to reinstatement upon completion of his or her leave. 

Step Three: Consider important logistical issues

In addition to selecting the employees who will return to work, employers must also consider a variety of logistical issues.  Following are just some of the issues that employers should consider as they re-open their operations 

  • Will all returning employees work at your facility, or will some work remotely? Some employees may be able to perform their work from home, and applicable orders may require employees who are able to work from home to do so in order to minimize crowding in the workplace. 
  • What steps, if any, will you take to confirm the health of employees who return to work at your facility?  Employers may consider taking the temperatures of employees as they arrive for work, or may ask employees to answer some basic questions about their health before permitting them to enter the workplace.  Organizations that elect to do so should be alert to privacy laws, including the notice requirements imposed by the California Consumer Privacy Act. 
  • Consider whether protective equipment will be required, and whether the employer will provide it. Depending on the configuration of the workplace, the number of employees present and other factors, the employer may require some or all of its employees to use personal protective equipment (PPE) when they resume work.  If an employer requires employees to use PPE, we recommend that the employer provide the necessary PPE in order to maximize utilization and safety in the workplace, and to avoid potential controversy regarding reimbursement obligations. 
  • Consider re-configuring work stations and common areas.  Employers may re-configure certain work areas and common areas such as break rooms in order to create additional distance between employees and reduce the risk of infection. 
  • Consider implementing staggered shifts and break periods.  Employers can also reduce the risk of infection in the workplace by staggering the shifts, rest breaks and meal periods of employees who return to work. 
  • Assure that your Distancing Protocol complies with applicable rules.  Many counties, including Santa Clara, and other jurisdictions have adopted distancing protocols that must be followed by businesses that resume operations.  As part of their planning process, employers should identify all distancing protocols applicable to them and assure that they are prepared to comply with those protocols as they re-open their operations. 

Step Four:  Remain alert and ready to adjust as conditions change

Laws and guidance regarding COVID-19 continue to change frequently, and the situation is likely to remain fluid for some time.  Employers should continue to monitor relevant authorities for guidance and should adjust their practices as required.  We anticipate that requests for accommodation (particularly in the form of working from home) will be more common than in the past, and employers should be prepared to engage in the interactive process when the request is arguably based on a disability or medical condition. 

If we can be of assistance to you in developing your return-to-work plan, or with any other issue related to employment law, please contact one of our attorneys:

Shareholders Associates
Eric C. Bellafronto Ernest M. Malaspina Sean Bothamley
Karin M. Cogbill Richard M. Noack Shirley Jackson
Jennifer Coleman Daniel F. Pyne III Michael Manoukian