Recalling Furloughed & Laid-Off Employees: Legal Considerations

Between death, job loss, and the end of the world as we knew it, the past few months have been hell for employers and employees. Perhaps your business was forced to layoff or furlough some or all of your workforce.

But glimmers of hope are emerging. Assuming your organization survived into June 2020, you’re probably now considering asking some of those people to come back to work.

This seems like it should be an easy win-win for everyone. However, as with practically everything these days, there’s significant risk if you don’t do it right.

Keep in mind that there are important legal distinctions between furloughed and laid-off employees:

A furlough is a break in employment for a specified period of time. There’s some flexibility in instituting and managing furlough. For example, you may decide to furlough an employee for a 90-day period but then decide to recall them after 75 days—or perhaps extend the furlough to 120 days. But the basic provision of a furlough is that the employee is guaranteed to be re-employed. A furlough can be changed to a layoff if the employer decides at a later date that they cannot return an employee or group of employees.

A layoff, by contrast, is a permanent separation of employment. If you rehire an employee after laying them off, you’ll need to treat them as a new hire and go through all the requisite paperwork.

You’ll need to follow certain practices for recalling laid-off employees back to work, and a different set of practices for furloughed employees. Here’s a general overview of the steps your company should take.

(Note that this is not intended as legal advice. Talk to your counsel before taking action.)

How to Recall a Furloughed Worker

1. Try to give at least one or more weeks’ notice if possible.
   
2. Confirm whether the employee is available to return to work, and confirm the predetermined date of return. Keep in mind that the individual may not be able to return immediately (e.g. due to illness), or may refuse to come back.
3. Consider having the employee sign a reactivation agreement upon their return.
   
4. Have the employee sign an acknowledgment of any new company policies and procedures that were instituted in their absence.

How to Recall a Laid-Off Worker

1. Confirm whether the employee is available and willing to come back to work. Again, consider the possibility that they may have found another job or decided not to return to work.
2. Treat the employee as a new hire. You don’t necessarily have to interview them all over again, but you do need to make sure they undergo the same HR processes that apply to any new hire.
3. Have the employee complete all federal, state, and company-mandated new hire paperwork.
4. Have the person sign a new copy of the employee handbook as well as any additional new company agreements, policies, and procedures that have been developed in their absence.

What If an Employee Refuses to Return?

Not every person you call back to work will be willing or able to return. Some may have found other jobs. Some may be sick or physically unable to come back to work immediately. Others may not want to risk any possibility of COVID-19 exposure.

If a recalled worker refuses to return, it’s important that you determine the reason for the refusal and, if possible, get it in writing.

Why is this important? Because some reasons to refuse to return to work are protected under various leave laws. In those cases, you have certain legal responsibilities to manage—e.g. providing employees with sick pay.

Under the Families First Coronavirus Response Act (FFCRA), there are 6 reasons an employee can go on leave and qualify for paid sick time:

1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
2. A health care provider has advised the employee to self-quarantine.
3. The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.
4. The employee is caring for someone subject to (1) or (2).
5. The employee is caring for a child whose school or place of care is closed due to COVID-19.
6. The employee is experiencing any condition substantially similar to any of the above, as determined by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

If someone fits any of those criteria and is unable to work remotely, they qualify for paid sick leave and are not mandated to return to work until they’re no longer covered by the FFCRA.

Additionally, an employee may qualify for expanded family leave under the Emergency Family Medical Leave Act (EFMLA) if they fall under item #4—i.e. they’re caring for a child whose school or place of care is closed.

These laws come into effect as soon as you’ve reactivated an employee. Reactivation typically occurs once you contact a furloughed or laid-off employee and offer them their job in writing.

Make sure to review any reason an employee offers for not returning to work with your legal advisor. If you and your attorney believe there is no qualifying legal reason for refusal, you may be able to consider it a case of job abandonment and terminate the person’s employment. However, if the employee’s reason does align with federal protections, you must follow your legal obligations.

Additionally, there are multiple medical and family-care related leave protections and accommodations under the Americans with Disabilities Act (ADA) that go beyond the scope of the FFRCA and EFMLA. Again—and I can’t stress this enough—talk to your legal advisor. If you don’t recall employees lawfully or respect their federal/state protections, your company could be on the hook for significant fines, lawsuits, and other legal risks.

For more information about returning to work in the wake of the COVID-19 pandemic, check out KPA’s new Return to Work Safely program.

KPA offers HR Solutions that help your organization streamline and automate workforce management. Contact us to learn more.