Phase One of Florida’s reopening plan is underway for most of the state. Now is the perfect time for South Florida’s business owners and management to prepare to face the novel employee issues that will arise when resuming full operations. If you have been the recipient of a loan through the Paycheck Protection Program (PPP) established by the CARES Act, rehiring certain employees may be necessary to receive full forgiveness. And of course, many businesses are anxious to get back into full swing to start recovering losses from Q1 and Q2. However, we are in uncharted territory. The laws affecting employers are ever-changing, and it is still unclear how courts will apply new and existing laws to employee claims that are likely to arise post-pandemic. Further, businesses everywhere are consumed with how to provide safe and healthy work environments to employees, and manage employment issues like never before. To assist employers, we have provided general guidance for managers on how to navigate tricky employment issues which could be hotbeds for employment litigation in the coming months.

  • Rehiring only a portion of furloughed workers. Employers should always consider their existing policies, employment agreements and collective bargaining agreements when deciding which employees to rehire. Beyond policies, when employers seek to restore only a portion of workers to the workplace, such decisions must be based on legitimate, nondiscriminatory reasons to avoid potential liability for discrimination claims, such as seniority, job criticality and operational needs. Further, decision-makers should not base the decision to not rehire an employee on perceived “high risk” of contracting COVID-19, including older or pregnant employees. The Equal Employment Opportunity Commission (EEOC) released guidance warning employers that employment decisions based solely on an employee’s high-risk status violates the ADA. We therefore highly recommend employers document their justifications for rehiring employees just as they would in a normal application process should these decisions be questioned later.

Another consideration is whether employers need to complete their standard new-hire process to return employees to work. For furloughed or laid-off workers, it may not be necessary to go through the entire onboarding process as you normally would for a new employee. However, this may be an opportune time to confirm that employees have complete personnel files, including Form I-9s, acknowledgements of handbooks, contact information sheets, etc. For employers who wish to rehire employees who were terminated, as opposed to furloughed, we recommend having the former employee complete an application and any other necessary documentation so that the employee’s employment history is consistent. This includes either completing a new Form I-9, or, for employees rehired within three years of the completion of the initial Form I-9, completing Section 3 of the current version of Form I-9 related to reverification and rehires.

  • Managing an employee who refuses to return to work. Under the PPP, 100% of the loan can be forgiven depending, in part, on the average number of full-time employees the employer has during the “covered period” of the loan as compared to the number of full-time employees employed prior to the pandemic. However, a borrower can increase the amount of the loan which may be forgiven if it rehires previously laid-off employees by June 30. Therefore, there is a real incentive for employers to bring back employees. But, what happens if an employee refuses to return to work? The Small Business Association (SBA) issued guidance recently which advised that a PPP borrower’s loan forgiveness amount would not be reduced if a laid off employee refused to be hired as long as the employer made a good faith offer of rehire, in writing, documented the employee’s rejection of the offer. Further, an employee’s refusal to work may impact that employee’s ability to receive, or continue to receive, unemployment benefits. Thus, employers have all the more reason to make sure that offers of rehire are made in writing, and the circumstances of any employee’s rejection of the offer is well documented.