On Returning To Work

I read in the news today that some governors and other state-level executives are starting to lift COVID-19 quarantine orders. Other similar officials in other places are leaving those orders in place or modifying them. This blog is not the place where I express my personal political opinions, but it’s worthwhile to note that such decisions are controversial and the wisdom of such orders is subject to question by reasonable people.

Whatever the implications or results, there is great desire by everyone, from all political perspectives, to get regular activities underway again. This includes work, and some employers are reaching out to their workers to say, it’s time to come back to work. For those employers who laid off their workers completely, this will take the form of a new job offer to the former employees.

As in all rehire-after-layoff situations, the regular rules for job offers should be considered in effect. Priority in re-hiring should be given to employees who held jobs before the layoff. An employee who was laid off at the start of the quarantine order likely does not hold that against the employer, but an employee who is not offered that job back when the order is lifted will likely wonder why. Should such a person want their job back, and not get it, that person may well seek out a lawyer and undertake a more searching inquiry into why — thus creating risk and expense for the employer.

The basic rule here will be the same as in a termination situation: whether or not the law requires it, prudence governs having an objective, documented explanation for the employment decision. I’m certain that I echo colleagues in human resources when I put the stress in that sentence on the word “documented.”

There may be all sorts of legitimate reasons a former employee is not asked back: present inadequate financial resources of the company to afford staffing at previous levels (though note that this situation will be expected to change and improve as the business spins back up to speed); negative assessment of the former employee’s prior performance; position obsolescence caused by process restructuring made during the quarantine. But there could be all sorts of other, less pleasant sorts of reasons that an upset former employee might allege, like discrimination or retaliation.

That’s why if you aren’t going to offer someone their old job back, you need to be prepared to both explain why, and then prove that what you’re saying is the truth. If your anticipated reason is “We don’t have enough money yet to afford everyone,” that’s fine, but you should be ready to make your business’s accounting available for the other side to review. If that sounds intrusive, it is, so you shouldn’t step forward with that information without legal counsel’s help in preparing an appropriate non-disclosure order to limit the claimant’s counsel’s ability to review, retain, and use that information, and to control that attorney’s ability to transmit your information to third parties.

Similarly, if you intend to not have someone back for a performance-based reason, it’s important to have documentation of past performance issues already in their file. This is actually just as it is in regular times — employers accused of wrongfully terminating their employees face an uphill battle in justifying their decisions as based on the employee’s poor performance when that poor performance hasn’t been documented along the way. The difference today and in the near future is that the form of the claim will be “wrongful refusal to re-hire” rather than “wrongful termination.”

A final note about unemployment benefits. An employee who reasonably interprets a governmental quarantine order to be contradictory to an employer’s instruction or offer to return to work, at least in California and Oregon, will likely be able to continue collecting unemployment benefits and potentially charging the employer’s account with the applicable agency (the EDD in California and the OED in Oregon). This is also the case if the employee has a doctor’s note about the employee’s individual health condition, or a sick family member to whom they must render care. Specifically in Oregon, an employee who declines an offer to return to work on the basis of the ongoing COVID-19 situation (and note that in Oregon, Governor Brown has not yet lifted the general quarantine order), unemployment eligibility remains in place.

At the end of the day, as I so often do, I challenge the people I discuss these matters with to not just comply with the law but to look above it. Folks are still scared and not all the information about the public health situation is yet known. If someone isn’t comfortable returning to work yet, it’s best not to compel them to choose between their families’ health and their paychecks. Figure out what you need to do to make people subjectively comfortable with the situation, and what you need to do to make people objectively safe.

The last thing to note is that it appears more and more that things will not return all the way to “normal” until a vaccine can be developed and distributed widely enough that, as with other vaccine-controlled diseases, generalized immunity can be assumed. That isn’t likely to happen for at least a year. We hopefully can all get back to work in some way before then, and there’s lots of reasons to be hopeful that this will happen. Until then, employers will face challenges of flexibility and creativity and compassion as well as of compliance and prudence. I’m here to help find the way through these uncharted waters, so please get in touch.