Discrimination, Benefit Issues to Watch When Returning Furloughed Workers

Many employers, confronted with significantly diminished revenue and a need to implement cost-cutting measures due to the Covid-19 pandemic, elected to furlough employees (placing them an unpaid, temporary leave of absence) in lieu of terminating their employment.

Now, as states begin to lift stay-at-home orders and business restrictions, there are several issues employers must be mindful of when recalling furloughed employees back to active employment—either remotely or in the office.

Mitigating Discrimination Risk

As my colleagues shared in an Insight in June, there are a wide scope of potential risks under federal, state, and local anti-discrimination laws employers face when determining which employees should return, when, and how. Employers must ensure that they have a legitimate, non-discriminatory reason for choosing which employees will return to active employment to avoid a class or collective action.

The best way to avoid claims is to develop an in-depth return-to-work plan acknowledging many of the same considerations as reduction in force planning, such as the job functions and skills necessary and the criteria, subjective or objective, used in selecting employees.

A crucial component of this plan is the identification of those tasked with selecting employees for recall, with additional written guidance detailing the selection criteria, and how to best support and document decisions.

Employers ought to have their preliminary list of employees selected for recall reviewed and possibly revised by higher-level decision makers to ensure the selection criteria were applied fairly. Employers should also consider retaining counsel to conduct a disparate impact analysis to ascertain whether a particular class is disproportionately impacted, and, if so, to ensure that the selections can be justified by legitimate, non-discriminatory business reasons.

Employers should also ensure that any return-to-work plan does not exclude older workers or others at an increased risk from Covid-19, including those with pre-existing conditions, as such conduct could violate the Age Discrimination in Employment Act and/or the Americans with Disabilities Act.

Finally, employers must also carefully evaluate recall decisions to avoid claims of wide-scale discrimination based on gender or related protected classes, including pregnancy or parental leave. Many employees, most often women, may still be balancing childcare responsibilities without consistently reliable options, which could impact their work performance, travel availability, or ability to return to work at all.

June 4, 2020, Bloomberg Law Daily Labor Report, “INSIGHT: Thoughtful Return-to-Work Plans Will Cut Discrimination Risk,” by Denise Merna Dadika; Frank C. Morris, Jr.; Lauri F. Rasnick.