By and

As states continue to modify and end stay-at-home orders, Minnesota and Wisconsin employers should give substantial consideration to the many employment issues as furloughed and laid off employees return to the workplace. The COVID-19 pandemic created many new challenges and issues for employers and individuals. Additional issues will arise as employers and employees continue to navigate these uncharted areas.

Lommen Abdo’s employment and business lawyers are here to assist you in addressing these issues, and others, as you contemplate a move to a “new” normal.

We think these are some of the most important issues to consider:

How to decide which employees return to call back to work?

  • Will there be a full return to work or a partial return to work?
  • Will full-time employees return before part-time employees?
  • How will return to work affect an employee’s unemployment benefits status?
  • Consider whether a permanent workforce reduction is necessary.
  • Consider whether your selection of employees to return to work will be scrutinized as discriminatory against employees in protected classes, or retaliatory against employees who have previously raised workplace concerns, including the need for leave for reasons associated with COVID-19.
  • Should you conduct a disparate impact analysis?
  • Consider and document business and profitability issues.
  • What type of processes will allow employees to safely return to work?
  • How will employees return to the work place in light of public transportation or shared vehicle service or safety limitations?
  • Which employees might still need to remain away from the business due to special circumstances identified by recent federal or state law?

Employment status

Has the employee been furloughed or laid off?

  • Different considerations arise depending on the type of separation that occurred.
  • Is a new employment relationship being established requiring new hiring documents, screening and the like?
  • In Minnesota, ensure compliance with Minnesota’s recent Wage Theft statute.
  • For a rehired employee, ensure your employment verification practices are compliant.

Job duties

Reconsider work assignments, job descriptions and job classifications:

  • Will there be changes to a person’s position and duties, reporting alignment?
  • Does the job description, including physical requirements need to be updated?
  • Will a possible reduction in workforce require combining job, supervisory or reporting responsibilities?
  • Do such changes impact an employee’s classification as an exempt or non-exempt employee change?
  • Do such changes impact an employee’s classification as an exempt or non-exempt employee?
  • Has this been communicated to the employee?

Employment documents

  • Should you prepare and sign new employment documents?
  • Are offer letters and other writings in compliance with state law?
  • Should existing contracts be updated or amended?
  • Do non-disclosure, non-solicitation, and non-compete agreements need revising?
  • Consider the return to work event as an opportunity to change terms of employment.
  • Consider requiring arbitration agreements with class action waivers for all returning workers, including those furloughed.
  • Consider adding new provisions relating to COVID-19 precautions and work rules to the employee manual.
  • Should you reconsider the generosity of employee benefits?

Should you create a task force?

Should you create (time and function limited) a task force to develop, monitor and evaluate the new work place processes and conduct training?

  • Be alert to ever-changing CDC guidance and other state law orders.
  • Prepare a written COVID-19 Preparedness Plan. Minnesota has a template and guidance which provides the basic issues to consider. These items can be found here. In addition, the CDC offers this guide for issues to consider in various settings including work, school, and community.
  • Provide employee training on return-to-work health and safety policies.
  • Consider whether to have policies to address issues such as child care challenges and limited transportation associated with mass transportation.
  • Consider evolving employee needs in working from home including software and hardware.

Safety precautions

Should you physically reconfigure work areas and provide other safety precautions?

  • Employers should be aware of and strive to comply with CDC, OSHA, Departments of Health and other guidance regarding social distancing and safety precautions, as well as educate the workforce on such guidance.
  • Should you provide protective devices or material, such as masks and hand sanitizers, to employees?
  • Should employers require employees to sanitize their work and nearby areas periodically?
  • Should employers mark floors with safe distancing reminders?
  • Should heavy public interaction areas have a clear screens installed?
  • Review the cleaning/sanitation process utilized as well as devices that have been used at home and are now being returned to the workplace.
  • Should employers limit use of restrooms, lunchrooms, conference or other common rooms with “reduced capacity” signage?
  • Consider whether lunchrooms and other “commonly-shared” areas need new rules for use (water cooler, refrigerators, microwaves, vending machines, coffee).
  • Consider using intra-building virtual meetings instead of physical meetings.
  • Consider limiting visitors and requiring such visitors to attest to their health before arriving.
  • Consider building ventilation and cleaning protocols.

Review status of benefits and leaves

  • Determine whether or not there are any health and/or dental insurance premium payment issues and discuss this with your plan administrator.
  • Verify status of PTO and vacation usage and accrual.
  • Track any time taken off under the Emergency Paid Sick Leave Act.
  • Consider revisions to employee handbooks.
  • How do furloughs and layoffs affect employee leave rights under ADA, FMLA, Sick and Safe ordinances?
  • How will refusals to return workers affect an employer’s rights to deductions or loan forgiveness under recent federal legislation?

Protect your business

  • Are there any gaps in the standard practices of your business that occurred during stay-at-home or shut down periods?
  • Did you document files as ordinarily would be the case?
  • Were standard document retention practices followed?
  • In light of the financial difficulties to many companies during this time, assess if different agreements or pay practices are needed.
  • Become aware of your rights and obligations if a customer becomes insolvent or files for bankruptcy protection.
  • Review any new or revised health insurance policies, liability and premises insurance policies.

Preparing your business to return to work involves careful, well researched and common sense consideration of the practical health and safety issues facing you, your employees and customers. Be prepared, if necessary, to explain and defend the actions you took. Keep good records of the meetings you conducted and the resources you consulted. Stay up-to-date and be prepared to pivot in a different direction when circumstances warrant.