CPA_Practice_Advisor_June_2020 - 30

THE LABOR LAW ADVISOR

Preparing for the
Post-Pandemic Workplace
MORE LAYOFFS
Over the pastfew months we have
seen millions of employees furloughed or laid off as the COVID-19
pandemic spread across our country. Job losses occurred in almost
all industries, including employers
big and small. The hospitality
industry had 83% of employers conducting layoffs and 63% conducting
furloughs. Furloughed employees
with hopes of soon returning to
their old jobs may now see their
furloughs converted to permanent
layoffs.
It is becoming increasingly
apparent that many businesses
that anticipated a return to
business-as-usual, will not see
it materialize. Even if some furloughed employees are recalled to
reopened operations, it may only
be a matter of time before they
are again furloughed or perhaps
permanently laid off despite their
employer's best efforts. It is virtually certain that Coronavirus and
COVID-19-related layoffs are going
to continue. In one survey, 32% of
Chief Financial Officers said that
they believe that there will be more
job cuts. "While federal and state
governments are seemingly doing
all they can to support U.S. businesses, SHRM (Society for Human
Resource Management) research
shows one-third of U.S. employers are still laying off workers
and will continue to do so in the
weeks and months ahead" said
Johnny C. Taylor, Jr., SHRM-SCP,
SHRM president and CEO. That
observation was confirmed by Dan
Lovine, head of Oxford Economic
Location Strategies, who was the

JUNE 2020 ■

lead researcher on the project.
SHRM research also found that 52%
of small businesses expect to close
within 6 months. That equates to
14 million businesses.

FURLOUGHS TO LAYOFFS
While some employers instituted
pay cuts or reduced hours, or
both, as cost-cutting measures in
an effort to weather the economic
storm, most utilized employee
furloughs and layoffs. The two are
similar in effect, but furloughs are
generally viewed as temporary
losses of employment with an
intent to have the employee return
to work. Layoffs, on the other
hand, normally connote a more
permanent separation of employment. No doubt some furloughed
employees will be called back as
businesses gradually reopen. They
will be returning to a very different
environment for both employees
and employers.

REOPENING ISSUES
Throughout the COVID-19 pandemic, the Center for Disease
Control and Prevention (CDC), the
U.S. Department of Labor (DOL),
the Occupational Safety and
Health Administration (OSHA),
state governments, and local health
agencies have been issuing, revising and updating guidance and
recommendations for prevention of
workplace exposure to COVID-19.
As businesses reopen, it is imperative that they have in place all measures of prevention recommended
by the various authorities, to the
fullest extent possible. Failure to
take these steps will potentially

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expose employees and customers
to infection. It could provide the
basis for DOL and/or OSHA charges,
as well as potential lawsuits. While
Congress is currently debating
some protections from liability for
companies that adhere to the CDC
and related guidelines, as part of
any future stimulus bills, it is far
from clear that it will be a reality.

WORKER'S
COMPENSATION CLAIMS
Employee claims of work-related
infections are likely to be handled
as workers compensation claims.
However, because of the serious problems with proving the
infection was contracted in the
workplace, such claims may be
dismissed. California, as the result
of a recent executive order from
Governor Newsom, has decided to
provide a rebuttable presumption
that the infection is work-related
for Workers Compensation coverage. Other states are have taken a
similar position.

EMPLOYEES AFRAID TO
RETURN TO WORK
An additional issue that is likely to
arise is the refusal of furloughed
employees to return to work for
fear of contracting the virus. Such
a refusal raises several potential
legal considerations. Under normal
circumstances, an employee's
refusal might be treated as a
voluntary quit. It would also likely
disqualify the employee for continued employment benefits. However,
as one might expect, in these
unprecedented circumstances
the old rules might not apply. The

RICHARD D. ALANIZ

Senior Partner
Alaniz Schraeder Linker Faris Mayes, L.L.P.
ralaniz@alaniz-schraeder.com

employee may have an underlying
medical condition or be of an age
that makes him or her particularly
vulnerable. In addition, the anxiety
that fear of infection causes could
constitute a "disability" under the
Americans with Disabilities Act,
as amended (ADA). That would
obligate the employer to consider
reasonable accommodation of
the employee's anxiety, such as a
leave of absence. As you can see,
a refusal to return is not as clear
cut a circumstance as it might
initially appear. Perhaps the safer
course is to treat the employee as
"inactive" and leave him/her on the
payroll. Termination carries with
it too many potential issues and
potential liability.

LAYOFF ISSUES
Unless an employer is party to a
collective bargaining agreement,
which almost always contain
layoff and recall procedures, or
has specific written layoff procedures in its employment policies,
there are no restrictions on how a
permanent layoff is conducted. Of
course, it cannot be discriminatory
in that any group protected under
federal or state law is subjected to
disparate treatment.

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