COVID-19: Transitioning Back to The Workplace – Part 3: What to Consider as You ‘Unfurlough’ Your Employees

Query whether “unfurloughing” is a word, but that’s exactly why we are using it. We had to grab your attention somehow.

So, let’s say you’ve navigated through the pandemic reasonably well (all things considered) and you’re at the point of bringing back to work some of your employees that you furloughed when things shut down. How does an employer go about “unfurloughing” employees, you might ask. Well, here are some things to consider – in addition to the health and safety issues covered in the first two blogs in this series.

First, know this. Unfurloughing an employee makes unfurling a sail (for those of you who are sailors) look like child’s play. In short, it’s more complicated than one would like to think.

Given that there is now a new normal, there are a number of things you will need to do at the company level before you unfurlough anyone.

• For example, make sure you have policies and procedures established to carry out the federal Families First Coronavirus Relief Act (FFCRA) provisions for emergency paid sick leave and emergency family medical leave, if applicable.
• Also, review your company’s Paid Sick Leave, Paid Time Off, Vacation and Personal Time Off policies and adjust them as warranted for the new normal. (These policies should only be adjusted prospectively, not retroactively, and with advance communication to affected employees.)
• Make sure they are adequately flexible and non-punitive in the event sick employees need to take time off.
• Ensure they account for those employees needing to take time to care for children due to school or day care closures or to care for sick family members.
• Review state and local leave requirements and ensure your policies and procedures are compliant.
• Review your remote work policy (or create one if you don’t already have one) to ensure clear remote work guidance that will work for your company and your employees.
• Likewise, review any expense reimbursement policies (and applicable law) to ensure it addresses expenses incurred while your employees work remotely. . Revise the policy as necessary.
• Review and revise your travel policy to comply with guidance provided by the Centers for Disease Control and Prevention (CDC).
• If travel is necessary, prepare to address employee concerns or fear over traveling.
• Review your company’s reasonable accommodation policy and ensure compliance with the latest Equal Employment Opportunity Commision (EEOC) and state and local guidance on COVID-19 issues.
• If applicable, post new notices in the workplace related to the FFCRA. Any applicable state and local notices, such as those for emergency paid sick leave, should be posted, too. Prepare to share notices electronically with any of your employees who will be working remotely.
• Review annual salary increase processes and bonus programs to see if they need to be adjusted.
• Establish a compliant repayment process for any loans, advances, benefits provided to employees for which they have a repayment obligation.

You will also need to train your managers on any and all new polices or revised policies to make sure they understand them and will apply them properly. This means, for example, educating managers on your company’s updated time off policies and processes and ensuring they respond to requests for time off with empathy and uniformity -- in addition to handling employees’ concerns about returning to work in general.

And, you will need to prepare to introduce your unfurloughed employees to all of the new policies as soon as they are unfurloughed. At the individual employee level, there is a lot to do, too. For each employee you are unfurloughing, you will need to:

• Review any changes that were made to compensation – e.g., if they were on reduced pay due to having been placed on a “partial” furlough (i.e., reduced schedule) – and evaluate whether prospective adjustments should be made (such as restoring them to their pre-furlough pay).
• If you partially furloughed some employees and moved them from exempt to non-exempt and from salaried to hourly, it may be time to restore their prior status.
• If you partially furloughed some employees and changed them from full-time to part-time or their work hours changed, you should consider restoring their prior status.
• Maybe you fully furloughed someone but are going to bring them back to work at a lesser rate of pay than their rate of pay before you furloughed them or reduced hours. If so, you will need to update their pay rate.
• Or, maybe you’re going to bring them back at a higher rate of pay than before. Maybe they’re going to be full-time for the first time since they’ve been working for you – due to taking on greater responsibilities, perhaps because other employees are not going to come back because you can’t afford to bring them back or because they don’t want to come back. In this instance, you will need to update their pay rate and their status, if that is changing, too.
• And, don’t forget to provide appropriate advance notification to any employees for whom changes will be made. In some states, that notification may require a special notice prescribed by a Wage Theft Protection Act.

In addition, for exempt employees returning to work in the middle or end of your established workweek, you must keep in mind that they are required to be compensated for the entire workweek (i.e., to receive their full weekly salary). This is because the federal Fair Labor Standards Act (FLSA) and similar state laws generally require that exempt employees receive their full salary for any workweek in which they do even the slightest bit of work. So, consider having exempt employees return to work at the beginning of the workweek.

Note also that if you plan to conduct temperature screening for employees who will be resuming work outside of their home, time spent undergoing screening may be compensable for non-exempt employees.

After working through all of the above “wage and hour” issues, there are number of other matters to attend to:

• Review benefit action items for employees who will be resuming work. Were their benefits terminated during their furlough? If so, you will need to figure out whether they will be benefits-eligible and, if so, when – and what process is to be followed to resume, renew, or revise their benefits.
• Re-issue equipment and update company network access, as necessary. For example, if you turned off their system access during the furlough, you will need to turn it back on at the appropriate time.
• Prepare for employees who may refuse to resume working. An employee’s refusal to return to work may result in a loss of unemployment benefits eligibility and, for that reason, may trigger an employer’s obligation to report to the state the employee’s refusal to return to work.
• Finally, send a letter to employees’ home addresses and personal emails to inform them of the decision to return them from furlough. After all, you probably cannot communicate with them using their company email addresses, assuming you turned off their system access when you furloughed them. Give them at least a week’s advance notice, although more notice is preferable, and ask them to confirm their intention to return to work. This will give you a chance to figure out who is coming back and who is likely to decline due to health and safety concerns or due to other reasons.

Our previous blogs in this series provide information on addressing health and safety issues and concerns. Please make sure to incorporate the recommendations provided in those blogs into your unfurloughing effort.

Visit the TriNet COVID-19 Preparedness Center for critical and up-to-date information as well as the impact of changing regulations on small and medium-size businesses. We will continue to monitor the COVID-19 situation and provide updates as necessary

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