Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
After COVID-19 abates, employers may determine that they cannot return all employees to the workforce. Some employers may need to recall employees on a slower timeline depending on demand, social distancing imperatives, and the timeline for production. Others may want to recall everyone, but may need to evaluate the terms of employment.
When evaluating these issues, employers should consider their obligations under their agreements and policies, including any collective bargaining agreements. Also potentially significant will be the provisions of the federal Worker Adjustment and Retraining Notification (WARN) Act, and similar state and local laws, with regard to when and under what circumstances temporary furloughs become employment losses that can trigger advance notice and/or severance pay obligations. Employers should also consider potential adverse impact issues when selecting who to return from furlough.
Some employees may express hesitation to return to work before a vaccine is widely available. In addition, employers should remain cognizant of their obligations under the Americans with Disabilities Act to discuss potential reasonable accommodation of employees with disabilities.1 Further, employers should be aware that employees who return from furlough can become eligible (potentially immediately) for paid leaves under the Families First Coronavirus Response Act and other similar state statutes.
Recall or Rehire Paperwork
When preparing to return employees from furlough, employers will want to identify the paperwork that needs to be completed to return employees to work.
To determine the documentation needed with employees returning from furlough, the employer first should review the length of a furlough. It is generally recommended that employers refresh their hiring paperwork for employees returning from a furlough of six months or more. Note that this is “rule of thumb” guidance, rather than a fixed rule. Note also that this will not be appropriate in all cases, particularly if the employer is relying on continued furlough status (beyond six months) to avoid triggering an “employment loss” for WARN Act purposes.
If the furlough lasted fewer than six months, employers should review the particular circumstances of the furlough – whether there are indicators that the employer and employees intended employment to continue, or whether it appears that the employer’s or employee’s intent was to sever the employment relationship – in determining whether it is appropriate to treat the recalled employee as a new hire for paperwork purposes.
It is recommended that employers provide all returning employees a recall letter at least a week or more in advance of their return to work with a date by which the employee must respond to the employer regarding their intention to return to work. We anticipate that some employees may have found other employment or relocated during the COVID-19 pandemic. Providing these letters a week or more in advance will assist the employer and employees in planning for return.
Background Check Upon Return From Furlough
At the time of recall, some employers will be required to rerun background checks due to legal or customer obligations. Some employers may desire to rerun background checks for other reasons.
Before ordering a background check report from a background check company for a recalled employee, the employer must ensure that it has a valid authorization for the background check from the employee. Background check authorizations drafted in recent years often include “evergreen language,” providing that consent is given for the employer to run a background check at any point during the employment relationship. Before rerunning background checks, employers should review the authorization and corresponding documents, especially the requisite disclosure about the intention to obtain a background check, to help ensure the documents satisfy current legal standards and have evergreen language. If the authorization on file does not have evergreen language, or appears outdated, an employer must obtain a new authorization. Employers should update these documents with the assistance of counsel if there is any question whether the employer’s documents have been updated recently.
Employers in California are advised to obtain a new authorization each time they order background checks even if they use an authorization with evergreen language.
As a reminder, if the employer does run a background check at the time of recall, the employer cannot simply choose not to recall the employee if the background check shows adverse information. The employer must provide notice in accordance with applicable law, including the federal Fair Credit Reporting Act (FCRA) and any “ban the box” laws.
Because of potential delays in running background checks, employers that are not required to run background checks, but prefer to do so, should include language in offer letters or recall letters providing that the employee receiving the offer is being hired or recalled provisionally. This language can replace the typical language stating that employment will not start until the results of the background check are obtained, given the anticipated backlog.
Drug Tests Upon Recall From Furlough
Generally, it is unnecessary to “update” pre-hire drug tests upon return from furlough.
Employers wishing to conduct drug tests of returning workers who were furloughed (with ongoing employment), should first check their policies and local law. Some employer policies allow for tests of workers who have been on leave or otherwise not working for a certain period of time, but most do not. If that is the case, a policy update may be needed. State and local drug-testing laws also may limit or prohibit tests of current employees on a suspicionless basis, even if the employee has been on leave and away for work for some time.
In contrast, workers in roles subject to mandatory drug testing – for example, tests required by the U.S. Department of Transportation (DOT) – may need an updated “pre-hire” drug test, or, if they were selected for random testing while on furlough, may need to be sent for a random test upon their return to performing safety-sensitive covered work. If the employee was removed from the company’s random testing pool while on furlough for a period of at least 30 days, a new DOT pre-hire test may be required.
Re-Performing I-9 Checks
If a furlough was treated as leave and as if employment continued, and the employee had a reasonable expectation of employment at all times, employers can continue to use the I-9 form that the employee completed at the beginning of employment. If the employees were placed in terminated status, however, an employer can either re-verify the I-9 or complete a new I-9. If the employee was in terminated status, and completed their I-9 more than three years prior to the rehire date, the employer must have the employee complete a new I-9 form.
The U.S. Citizenship and Immigration Services (USCIS) website provides guidance on each of these situations.
Because situations and workplaces vary, employers beginning the process of recalling employees from furlough should consult counsel.
1 Separate Littler Insights will provide guidance on creating a safe work environment and addressing leave and disability issues, among others.