Governments’ efforts to address the novel coronavirus pandemic include measures that closed or curtailed many businesses’ operations. As governments relax these restrictions, businesses must hire, rehire, or recall employees who were laid off or paid to be on call.

Some employers may discover that returning employees to work involves unanticipated challenges. For example, initial business volume may not support rehiring all of the employees employed before the shut downs. Or, an employer may be allowed to resume only part of its business. These employers may have to decide whom to reinstate first, or at all.

In other instances, employees may not wish to return to work when recalled. These situations raise a variety of employment law issues. Here are some of the main considerations.

Choosing Whom to Recall

When governments imposed “stay at home” requirements, many businesses drastically curtailed operations or shut down entirely. As a result, these employers temporarily or permanently laid off employees.

With the phased re-opening of the economy, not all businesses immediately can return to full capacity or previous business hours.  For example, restaurants allowed only to serve via take-out or delivery may not need a full complement of service staff. Retailers allowed only 25% of customer traffic may not need as many sales workers. Additionally, the public may not yet be ready to patronize businesses to the same degree as they used to.

Some employers therefore may rehire only a fraction of their pre-shutdown workforces. The greatest potential risks arise when management must choose among workers performing the same position. Take, for example, an employer deciding to rehire only 10 out of 30 customer service representatives.

Using the pandemic to purge “troublemakers” or “headaches” may create trouble and headaches. To help avoid discrimination claims, management should base recall and rehire decisions on objective, legitimate reasons. Assuming no contractual obligation to rehire based on length of service (seniority), employers should consider similarly objective selection criteria. In addition to length of service, performance appraisal scores, personal sales volume, and measured work accuracy are examples. Basing a recall or rehire decision on an employee’s pay rate is a potential age discrimination issue.

Employers should analyze recall decisions for patterns that could indicate an unconscious discriminatory motive. For example, if all 10 of the reinstated customer service agents in the above example are male, and the 20 laid-off workers are female, the selection criteria potentially may unlawfully screen out females.

Similarly, employers should avoid retaliation claims. For example, eliminating only those employees who used COVID-19 Supplemental Sick Leave, or who took Expanded Family Leave to care for a child during the pandemic, may attract scrutiny. Choosing to layoff an employee currently on a protected leave is potentially risky as well.

Employers also should consider how they handled employees’ status when they stopped operating. Employers that initially “laid off” or “terminated” workers’ employment must consider how they will treat rehired workers for benefits and other purposes based on length of service. Legally mandated, new hire paperwork may be required. Pay rate changes may trigger obligations under the Labor Code, such as section 2810.5.

On the other hand, if a business initially merely “suspended” or “furloughed” employees, with or without pay, laying off part of the work force may create new obligations under federal or state WARN Acts. For those employers who issued WARN notices initially, the acts may require new notices, or amended notices reflecting changes to the information initially provided.

Employees Refusing to Return

Employers may encounter former or current employees unwilling to work, at least not at the time the employer offered recall or reinstatement.  Employers may accept that decision as job abandonment or refusing a job offer in many cases. However, employers should consider employees’ reasons for declining to work, to assess potential legal obligations.

If an employee previously was laid off, is offered rehire and refuses, the employer generally may move on to the next candidate. However, the employer should allow the laid off employee to reapply in the future.

Workers who wish to continue collecting “enhanced” unemployment benefits until benefits are exhausted may not have a legally protected right to refuse recall. Employers should issue a short, clear, written offer to return to work, and may inform the workers their refusal may affect entitlement to unemployment benefits. However, current employees using protected leaves of absence under federal, state or local law – including Expanded Family and Medical Leave for childcare – may be entitled to reinstatement upon the conclusion of the leave period.

Employees who claim they are afraid to return to work require individual consideration. A current employee’s general fear of COVID-19 exposure may not create a legal “right.”  But a current worker’s concern due to a known or articulated disability may require an “interactive process” to determine if reasonable accommodation is possible. Accommodations could include work space adjustments, additional protective equipment, schedule changes or, in some cases, transfer. Telework may be an appropriate accommodation, particularly if remote working was allowed during the shutdown. However, telework may not be legally required if it requires removing essential job functions, or would cause undue hardship to the employer.

An employee’s claim that the workplace is unsafe also requires additional attention. Employers should ensure they are complying with federal and state guidance, provided by the OSHA agencies, the Centers for Disease Control, and/or state public health authorities. Employers also should ensure they are following the restrictions imposed by government orders permitting return to limited operations. Employers should document compliance and attempt to assure employees that the workplace is safe.

Re-opening is another employment law minefield for employers. Businesses should partner with competent counsel to help prevent employment law claims.