Blog: The California Workplace Advisor

As California enters its third month of the stay-at-home order, the idea of having employees return to work still seems like a distant reality. However, as other states begin to open their economies and businesses, California should prepare for the same.

When creating a rebound plan, employers should be mindful that they may not be able to bring their entire workforce back to work all at once due to safety and health concerns related to COVID-19. This raises a critical question for employers: Who can return to work first?

The answer is not easy. Some of it depends on your business needs. Some of it depends on your workforce. There are, however, several important factors you should consider in making this decision.

Higher Risk Employees: While anyone is susceptible to contracting COVID-19, certain demographics are more vulnerable to infection than others. According to the CDC, those who are considered higher risk include:

• older adults (age 65 and older),
• people of any age with underlying medical conditions (i.e., serious heart conditions, diabetes, severe asthma, kidney disease, liver disease, or who are immunocompromised), and
• possibly pregnant women.

Employers should gauge if they have employees who are classified as higher risk, or who live with higher risk individuals, and delay bringing these employees back into the workplace.

Employers should also determine whether reasonable accommodations are available for employees who are considered “higher risk” and are unable, or who refuse, to return to work and engage in the interactive process. The White House recently issued a guidance on opening up the economy, and advised employers “to encourage telework, whenever possible and feasible with business operations.” Moreover, employers “should strongly consider special accommodations for personnel who are members of a vulnerable population.”

Reluctant or Unavailable Employees: Employers should anticipate that some employees who are not classified as higher risk may simply be reluctant to return to the workplace. Employers should also expect that some employees may have difficulty returning to work because they temporarily relocated during COVID-19, reside in a different county subject to different shelter-in-place restrictions, or have childcare obligations.

Employers will need to evaluate their essential business functions and determine if not having these employees in the workplace would cause a business hardship, or if working remotely is feasible. Employers may also want to consider cross-training employees to perform essential functions, so that the workplace can operate even if key employees are absent.

Able and Willing Employees: These are employees who are:

• not classified as higher risk,
• do not live with vulnerable residents, and
• are willing to return to work.

Employers should gauge if they have employees within this group and consider bringing them back to work first, using the criteria laid out in our previous blog post.

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Employers need to be careful that their rebound plan of bringing employees back to the workplace is conducted in a fair and non-discriminatory manner. Excluding employees from the workplace based on protected characteristics (e.g., age or pregnancy) may give rise to an unlawful discrimination claim. To ensure employers are not running afoul of California and federal laws, it is best to reach out to legal counsel before implementing any return-to-work protocols.

Questions about COVID-19 and the workplace? Contact the Hirschfeld Kraemer lawyer who normally provides your legal advice, or you can reach out to Anna Pham in Hirschfeld Kraemer’s San Francisco office, apham@hkemploymentlaw.com, (415) 835-9012.

Did you miss previous posts in our Planning For The Rebound series? Click on the links below:

Step 1 – Requirements For Returning To The Workplace

Step 2 – Do I Have To Bring Back Furloughed or Laid-Off Employees?

Step 3 – Do Employers Need to Bring Back Under-Performers?

Step 4 – Ready To Go Back To Work? Not So Fast …

Step 5 – Passing the Test: COVID-19 Screening in the Workplace

For additional employer-focused information about COVID-19:
Click here to see the Hirschfeld Kraemer EMPLOYER’S GUIDE TO CORONAVIRUS