Deciding which employees to bring back from furlough or temporary layoffs due to COVID-19? Selecting these employees and determining in what order you’ll call them back will require an individualized analysis for each organization. For those who aren’t sure where to begin, here is a framework to help you get started.
First, consider your projected operations in the future. How busy do you plan to be? It’s best to slightly underestimate the need than to keep going back and forth with employees. It’s also easier administratively if you only need to furlough and then recall an employee once. After all, you can always recall more employees later once you’re certain the need exists.
Think about whether there are parts of the products and services you offer that will be more or less important in the future. For instance, a bakery might have very little event catering in the next few months but may need more delivery drivers. If your company went through the Great Recession, how were you impacted by the economic downturn at that time? Which departments and types of jobs were most essential as business resumed? Which were the least essential?
Forecasting future staffing needs will likely require a lengthy discussion between your organization’s leaders as well as a willingness to change course and adapt as needed.
Top Tip: When it comes to forecasting, a great place to start is by data mining your HR & timekeeping records!
Individual Employee Selection
Once you’ve settled on a general staffing plan, you’ll need to decide which employees you want to return first. Establish one or more criteria for return. You don’t have to adhere to these criteria perfectly, but the more you do, the easier it will be to explain decisions to employees. (Or in the event of an employment lawsuit.) If you deviate from your system, be sure to take good notes explaining why.
Potential Criteria for Employee Selection:
- Unique or difficult-to-replace skill sets. Business needs will likely dictate when you bring back individuals with special skills. However, you may want to make a point to reach out to these people sooner rather than later to ensure they will be available when you need them.
- Overall performance. Preferably, performance-based decisions will be based on written documentation you already have. For example, performance reviews, production metrics, disciplinary actions, or a history of attendance/tardiness issues. If performance has not been previously documented but will still be the basis of your decision, you should take the time to create that documentation now.
- Seniority. Using seniority as the primary factor in a layoff decision is a simple, objective criterion that can reduce your company’s liability exposure. However, this is not always in the employer’s best interest. When attempting to operate “lean,” seniority doesn’t always correlate with the skills you need most in the workplace.
- Demonstrated ability and willingness to do work outside of their usual assignments. We’re in uncertain times, and having someone who is willing to roll up their sleeves and clean the bathroom or make a delivery if necessary can be invaluable. You can assess this quality based on past actions or by asking employees specifically about their willingness to do tasks that may be significantly outside their job
Keep in mind, you may choose to call back some employees who have a mix of strengths but are not standouts in any area. This is totally fine! Just be clear with employees and document your reasoning. All criteria used should be job-related or related to business needs.
Potential Discrimination Pitfalls
In addition to the criteria above, there are a few caveats to keep in mind as you bring back employees after COVID-19. First, making decisions based on someone’s inclusion in any of the following federally protected classes is illegal. These include race, color, national origin, religion, sex, age (over 40), pregnancy, citizenship or immigration status, military status, and disability.
Further, some states have additional protected classes, so be sure to check state law. Under the current circumstances, there are a few types of discrimination in particular that employers should be wary of.
Top Tip: Need help staying on top of all the different state and federal laws? With HR On Demand Plus, SDP can act as your outsourced HR department to help you craft your own custom COVID-19 response and stay compliant long after the pandemic is over.
The federal Age Discrimination in Employment Act (ADEA) protects employees who are 40 or older. Older employees, on average, will have higher rates of pay. If you decide to eliminate the highest earners from your payroll to save the most money possible, that may disproportionately impact those over 40. As a result, if you are considering this approach, we encourage you to call an attorney before finalizing your decisions.
You may also be inclined to “protect” your older workers from the virus by not inviting them back. This should not be part of your analysis. If upon being offered work, an employee of any age tells you that they need an accommodation of remaining furloughed a while longer, then consider that request. Failing to bring an employee back to work because of their age — even if you’re operating with the best intentions — will be a clear case of age discrimination.
Top Tip: While the ADEA takes effect when an employer has 20 or more employees, your state may have similar laws that cover smaller organizations. Keep this in mind as you prepare to bring back employees after COVID-19.
Disability discrimination is also likely to result from employers trying to protect employees. But it is not the employer’s job to determine what is best for an employee based on their known or perceived disabilities. Rather, doing so can actually be considered disability discrimination.
In the communication you use to offer employees a return to work, all employees should be encouraged to contact you if they want to discuss safety issues or accommodations. Do not make assumptions about what employees will want to do based on their health; that is between them and their healthcare provider.
Should an employee request a reasonable accommodation, you should engage in the Americans with Disabilities Act (ADA) interactive process. Requests for accommodation must also not affect your decision about whether to return an employee to work.
Finally, while the ADA takes effect when an employer has 15 or more employees, note that similar state laws may apply to smaller organizations in your state.
Retaliation for Use of Protected Leaves
Next, employers should ensure that an employee’s use of protected leave does not factor into their decision-making. Equating use of protected leave with a reliability problem (for instance), and therefore not calling that employee back as soon as you would have otherwise, will constitute retaliation against that employee for exercising their rights. This applies to:
- State-mandated sick leaves
- Leaves under the traditional Family and Medical Leave Act
- ADA leaves
- Emergency Paid Sick Leave and Emergency FMLA under the Families First Coronavirus Response Act (FFCRA)
- State-specific protected leaves, such as voting leave and emergency responder leave
Documentation is just as important now as ever. Even though it may feel like a mass furlough is the perfect opportunity to let go of poor performers, employers shouldn’t assume their motives won’t be questioned. Documentation should be in writing and easily understood by an outsider to your business.
As a best practice, document why you chose to bring back certain groups of employees before others. Additionally, record why each employee was chosen before others in their job type.
For Those You Don’t Bring Back
If you are bringing employees back in phases, it will save you time to communicate that plan to everyone. If you bring back some employees after COVID-19 but don’t communicate the others, they’ll find out through the grapevine. The result? Frantic calls, texts, and emails for more information.
It’s always better to devise a clear communication strategy and message from the outset so you can people’s minds at ease about the future.
Additionally, if you have decided not to bring certain employees back at all, you should communicate that decision to each of them as soon as possible so they can start making plans for their next job opportunity. Stringing someone along for weeks or months when you have little to no intention of bringing them back will result in ill-will.
In the era of social media and online reviews, employers will benefit from showing compassion. (Especially post-COVID-19, when many businesses will be fighting to rebuild their customer base!)
What Do You Think?
The COVID-19 pandemic has taken a toll on everyone’s mental health. People have experienced financial hardship, new childcare challenges, job loss, reduced hours, sickness, and grief. The future is uncertain, and the present is extra stressful. Even worse, many of the networks people use for mental health support are currently unavailable due to social distancing.
For more resources on how to bring employees back and answer other Return To Work questions, check out our COVID-19 Resources Hub. Lastly, don’t forget to follow us out on Facebook, Twitter, and LinkedIn for even more business tips & tricks!