Legal considerations for bringing employees back to work
by NIKHIL N. JOSHI, ESQ.
Hospitality employers are preparing and bringing back workers or hiring anew. When putting together their return-to-work plan, hotels must account for (1) the Occupational Safety and Health Act (OSHA); (2) anti-discrimination laws; (3) the Americans with Disabilities Act (ADA); (4) the Families First Coronavirus Response Act (FFCRA)/the Family and Medical Leave Act (FMLA); and (5) time off/vacation/sick policies, among other issues.
Employers must provide employees with a safe working environment (and their guests with safe accommodations as well). OSHA has the authority to investigate complaints of unsafe work environments. OSHA investigators are authorized to review an employer’s efforts to comply with the CDC guidelines, whether specific for an industry or other general business guidance relating to COVID-19. To avoid unsafe workplace claims, while on duty, employers should ensure employees observe infection control practices and continue to adhere to social distancing, handwashing, and other CDC recommendations. Employers also should assess whether masks must be worn, and, if so, what additional requirements may be applicable such as additional training.
Many hotels may return employees in waves, depending on operational or seasonal needs. Those employers must ensure decisions made are based on legitimate, non-discriminatory reasons. Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, and many state EEO laws apply to all employment decisions, including who to bring back to work. Employers must avoid making decisions on who to return to work based on age, national origin, religion, gender, pregnancy, or other protected characteristics.
With respect to disability law in the workplace, even though the ADA remains applicable to employment decisions, as of now, the Equal Employment Opportunity Commission (EEOC) – the federal agency in charge of enforcing EEO laws – is providing employers with greater discretion when bringing back employees. Employers are now permitted to require employees to submit to a COVID-19 test before returning to work and are permitted to take other precautions because employees with COVID-19 would pose a “direct threat” to the worksite.
Opening after a short-term shutdown will not generally relieve the employer’s responsibility to provide employees with leave required by the FFCRA. Such leaves are still required for qualifying individuals through Dec. 31, 2020. Critically, as of recent guidance, the paid leave for either are not included in the payroll costs handled through the Paycheck Protection Program (PPP), and, unlike payments for other types of leave, will not count toward loan forgiveness.
If employers have time-off plans, is there a need to temporarily freeze usage? Do employees on layoff have any remaining time off? If yes, can they carry over any accrued time off? Will employees not returning yet be forced to use accrued time off? The EEOC has issued guidance on managing employees reporting illness, taking time off due to illness, or subsequently returning to work following illness. ?
A Florida-Bar, Board-Certified Specialist in Labor and Employment Law, Nikhil N. Joshi, Esq. has exclusively practiced labor and employment law since 1997. Joshi represents and defends hospitality employers such as hotels in federal court, state court, and in front of administrative agencies. He also handles employer labor relations, including collective bargaining, and anti-union campaigns. Joshi has lectured and presented to various professional, civic, and charitable organizations, including the AAHOA Convention & Trade Show