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National Clothesline
Think and plan for your reopening
On a personal note, I continue to wear dress clothes, even when I telecommute. I am
continuing to visit my drycleaner of choice, although the amount of clothing I am having
cleaned is down somewhat.
Restaurant eating was a major contributor
to my need to spot clean my pants and
jackets. I know, however, that many
drycleaners have drastically reduced staff,
and some have shut down (at least cleaners
with multiple locations). This month's column
deals with what you need to consider as
COVID-19 restrictions are eased or rolled
back
There are many practical and legal considerations to take into account as employers reopen
and/or reintegrate employees into the workplace. A one-size-fits-all approach is not appropriate
— different variables and actions you have taken thus far will affect the who, what, where, and
when regarding how you prepare to, and actually do, return to the workplace and/or expand on-
site operations.
General principles
• Decisions should be made by a team, which can be small, with the goal being to consider a
diversity of viewpoints. The primary decision maker is well served to have input from others not
necessarily seeking his or her approval.
• Articulate the business reasons for
returning to work in the context of health
and safety. If appropriate, employees
should be able to understand that
restarting and reintegrating certain areas
or departments before others is a
prudent business action.
Determine the number and type of
employees who will return first. That may mean certain departments or key employees in each
department will start the process.
Check whether opening, especially in stages, has an adverse impact on certain protected
groups. For example, are employees in the first department to open mostly men while
departments whose employees are mostly women remain shut down. If so, reconsider the
decision and if it remains the correct business action, articulate a legitimate, non-discriminatory
reason for the impact.
If you are considering an altered schedule, such as shorter days or fewer days per week,
check the effect on wage and hour compliance. Pay attention to exempt employees and rules
regarding advance notice prior to schedule and wage changes.
Prepare and disseminate safety guidelines that are clear, direct, and in line with CDC, state,
and local rules.
Identify the contact person(s) whom the employees may contact. Provide that contact
person(s) with other management sources who will provide support.
Develop a crisp, factual letter to employees about the plan and safety guidelines. Send
updates about any material changes.
If an employee refuses to return to work or does not show up as required, have a discussion
with the employee. After talking with the employee, determine whether the offered reasons
describe a protected status.
If so, accommodate the employee. If not, determine what action you intend to take if the
employee does not comply. Communicate your position to the employee and follow it up in
writing. Give notice of intended action and opportunity to comply.
If you are separating employees from employment, determine whether a challenge to
unemployment is appropriate.
Keep all notes of interactions factual and pointed. Accurate, brief accounts are better than
verbose narratives.
Consult with counsel.
Initial considerations and planning
Create a plan to reopen and reintegrate the workplace with consideration to the items on
this checklist.
Timing/Scope. Assess and decide how quickly you want and need to reopen, including
whether a staggered reintegration is appropriate and feasible. If you will not reopen all at once,
decide how the phased-in reintegration will work.
Financial concerns. Conduct a financial health check and determine budget priorities. Include
in your decision making the impact of tax credits, tax deferrals, and/or loan
forgiveness/repayment that will affect your operations. Document the impact of employment
decisions on the financial health of your organization.
Employment Decisions. Create a reinstatement/hiring plan supported by legitimate business
reasons.
If you have implemented layoffs, furloughs, or other reductions-in-force, decide the who,
what, where, why, and when of the reintegration.
Identify the decision makers that will decide which employees will be invited to return and
when, the factors you will consider in determining who you will ask to return and when, and the
employees, if any, who you will not ask to return (short term, intermediate term, and long
term).
If there are any such employees, document your rationale so you can explain the legitimate
business reason(s) for those decisions.
Anticipate that there may be certain classes of employees (i.e., older workers,
parents/guardians unable to access childcare, employees with underlying medical conditions)
who may want to return to work, but cannot (or under advice of a health care provider should
not) because of COVID-19-related reasons. Consider how you will reintegrate these workers
when they are available.
Assess legal risk of employment decisions related to employees who were on job protected
leave or receiving other accommodations when their employment terms changed.
Determine whether you will modify employee pay/hours as part of the reintegration.
• Document your rehire/reinstatement plan, which includes the legitimate business reasons
for making those decisions. Retain all records.
Consider voluntary reintegration, if feasible, for your workforce.
Anticipate challenges. Assess how your plan might be affected by external factors (i.e.,
known/unknown governmental orders, customers, vendors/suppliers, landlords).
Future layoffs, furloughs, reductions-in-force. Plan ahead for future layoffs and similar
decisions. Be aware of the Worker Adjustment and Retraining Notification Act (WARN Act) and
similar state laws. These laws generally require covered employers to provide advance notice
when there is a plant closing or layoff of a certain size. Always consult with counsel before
closing a facility or implementing a mass layoff.
Make decisions based on objective criteria (i.e., decision based on a specific business unit or
location, decision to separate X% of the workforce based on seniority). If decisions rely on
subjective criteria (i.e., “this employee is better than that employee”), retool that criteria into
objective elements (e.g., attendance, skill, ability, knowledge, production numbers, etc.).
Review decisions prior to implementation for potential adverse impact on identified minority
or other protected groups.
If you are offering severance agreements in connection with layoff decisions, you will likely
need to provide at least 45 days’ for employees to consider the offer under the Older Worker
Benefit Protection Act.
These are the primary employment considerations. There are many other practical
considerations that are beyond the scope of this column. Do your research.


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Frank Kollman is a partner in the law firm of Kollman & Saucier
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