I have been speaking with many clients about the first steps for return-to-work planning.  The Covid-19 shut-downs were so quick that there wasn’t  sufficient time to plan.  Employers want to have a more thoughtful approach to bringing the workforce back.  Here are a few initial considerations.

First, consider what message you provided to your workforce when you closed.  Did you tell everyone the layoff/furlough was temporary and they would be asked to return when you were allowed to re-open?  If so, then keep your word.  Or did you lay everyone off with no promise to return?

Second, depending on your pre-closure message, it may make sense to simply reinstate workers with their prior offer letter and personnel file intact.  Consider obtaining confirmation that the information is still accurate, and disclosing that the prior personnel file remains effective.  Keep in mind, you will need to fill out Section 3 to each form I-9.

Third, you can also opt to rehire in a more formal way with an entire new hire packet.  Use this opportunity to have employees sign an updated handbook (to include Covid-19, work-from-home, and safety related policies), and perhaps an updated confidentiality agreement and/or arbitration agreement.  Also reiterate that all employment is at-will and subject to change as the economic situation develops.

Finally, keep in mind that when rehiring, if you cherry pick you may open your company up to discrimination claims.  A conservative approach is to rehire the most senior employees first (i.e., the opposite of the last-in-first-out approach for layoffs).  Any deviation due to skill set or performance should  have documented back-up and be thoroughly vetted.  Also note that some cities (and union contracts) may  requirements about rehiring, as Los Angeles is currently considering.

While employers had to shut down without much notice, the return-to-work phased re-opening process can be more thoughtful and organized.  In these uncertain times, here’s to controlling the things you can (or at least clinging to the illusion of control)!

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