Reinstatement Guide

Employee Reinstatement Process Guide

Use this tool to diagnose the reinstatement process and the potential situations or issues that occur.

 

Step 1: Pick your reopening date

You need to establish the date or dates when your employees will return to work. This might be the same date for everyone, or it could be different for each department or each employee depending on the needs of the business at the time. 

 

Step 2: Offer reinstatement to your employees

Depending on how the employees were handled when the business phased down, this will dictate how they are brought back. Find your particular situation using this grid, utilize the appropriate paperwork (see forms at the very end of this document), and send the information to your employees. 

Did you do a…..? Meaning: Are you changing their employment details? Necessary Form(s):
“Furlough” The person stayed “employed” with you, they stayed on payroll, you did not end their employment No. They will have their original hire date, same wage, same employee classification, same benefits. Reinstatement Recall Letter Basic
Yes. Their wage is changing, their benefits are changing, etc. Reinstatement Recall Letter For Job Changesand the  “Status or Benefit Change Notice” **
“Temporary Layoff” The person stayed “employed” with you, they stayed on payroll, you did not end their employment No. They will have their original hire date, same wage, same employee classification, same benefits. Reinstatement Recall Letter Basic
Yes. Their wage is changing, their benefits are changing, etc. Reinstatement Recall Letter For Job Changesand the  “Status or Benefit Change Notice” **
“Temporary Layoff” The person did not stay employed with you. You ended their employment fully, paid out applicable benefits, ended insurance payments, and issued a final paycheck appropriately No. They will have their original hire date, same wage, same employee classification, same benefits. Reinstatement Recall Letter For Job Changes
Yes. They will have a new hire/rehire date, their wage is changing, their benefits are changing, etc. Reinstatement Recall Letter For Job Changesand the  “Status or Benefit Change Notice” **
Full Layoff/Termination The person did not stay employed with you. You ended their employment fully, paid out applicable benefits, ended insurance payments, and issued a final paycheck appropriately Yes. They will have a new hire/rehire date, their wage is changing, their benefits are changing, etc. Full new-hire paperwork, as if they were a new employee.

 

Step 3: Assess the employee responses

If an employee says “Yes” to your reinstatement, great! Work out any other details with them, move forward, and you are done. 

If an employee says “No” to your reinstatement, for any reason, proceed to Step 4.

 

Step 4: Begin the good-faith interactive process with your employee(s)

It might be tempting to just take an employee’s reinstatement rejection as their resignation, but the situation is not that simple. As you will see below, there are many reasons why an employee might not want to, or not be able to, return to work. Dismissing the employee or automatically treating them as resigned may result in liability, lawsuits, or labor board complaints. Be sure to also read the Important Considerations below, which are indirectly related to the situations listed below.

Given the size and scope of the COVID-19 situation, we feel it is absolutely essential that you attempt to work through this in a positive manner with your employees. Your goal should be to find common ground, with a focus on win-win solutions. 

It is critical that you understand exactly why an employee does not want to return to work.

As always, documentation, documentation, documentation. Document your entire process with all of this. Make sure you have clear, precise, and objective business reasons for the actions you take, and everything is documented to protect you from future claims.

If the employee has not provided specific information for why they are not returning, you will need to ask them for specifics. Their answers may fall into one or more of the following categories, and you can then proceed accordingly:

  • “I am getting out of the industry all-together and will not be returning to work under any circumstances.”

This is a straightforward resignation process. You’ll want to get a Resignation Notice in writing from the employee. Or, if the employee was already permanently laid off, then no documentation is required. 

  • “I don’t feel comfortable coming back to work due to a local/state “shelter-in-place” (or similar) order.”

While your particular industry or business might be allowed to operate, there may be local or state orders in place that restrict an employee’s ability to work. Rather than get into a fight about jurisdiction and who is “right” or “wrong,” we recommend allowing the employee to be on a leave of absence until the order is lifted. Every state and local order is different, so be sure to read the details yourself.

  • “I can’t come back to work because I have children who are out of school or do not have daycare.”
  • “I am caring for someone in my household who has COVID-19.”
  • “I have been advised by a healthcare professional to self-quarantine.”

These situations fall under the Families First Coronavirus Response Act (FFCRA) from the federal legislation HR6201. This complicated piece of legislation provides for paid sick leave and paid family leave in certain circumstances. For example, a school or daycare closure falls under Qualifying Reason #5. 

As of the Reinstatement Date that you set, the employee may transfer from furlough/temporary-layoff status to FFCRA paid sick leave. Note: the wages associated with FFCRA are reimbursed by the federal government in the form of payroll tax credits.

You will want to review our FFCRA How-To Guide, as well as the Department of Labor FAQs, and have the employee fill out the appropriate Leave Request Form, and proceed accordingly.

A common response to this is: “I will just keep certain employees on furlough/layoff status.” This can create liability and risk for your business, if the “certain employees” happen to be those with children, and who are protected under the FFCRA. To an outside observer, this can appear as discriminatory. Even if the employee seems on board, this could be used against you at a later date.

Keep in mind that the FFCRA is valid through December 31st 2020, so it will be a part of our lives for a while.

  • “I don’t feel safe coming back to work”

First, engage in a dialogue with the employee about their specific reasons: 

  • Are they worried about contracting the virus from a co-worker? 
  • Or a patient/customer? 
  • Do they have someone in their household who is high-risk? 
  • Find out what could be done to alleviate their concerns. 
  • Would additional PPE make a difference? 
  • Or more space between workstations?

Second, make sure that your office is following the latest OSHA, CDC, ADA, state dental board and public health recommendations and requirements. You may need to update some of your SOPs and make physical changes to your office. Really dive into these various requirements and recommendations. Review information from all of the agencies, not just one. Communicate to your employees what you are doing, what you are changing, and exactly how you are going to keep them safe.

Depending on your office size and your state, your employees may fall under mental and physical disability protections. Their mental disabilities, such as anxiety and depression, could be exacerbated by the COVID-19 situation, and dismissing them could result in a lawsuit or claim. 

Also, be careful about making safety decisions for your employees. This is usually done with good intentions to protect your team. However, this can easily lead to a discrimination claim. For example, if you have 4 employees under the age of 40, and one employee is in her 60’s. While you gradually increase the business level back to normal, you tell the older employee to stay home and stay safe, while allowing the younger employees to return to work. This can result in an age discrimination claim.

If an employee is high-risk or doesn’t want to work for other health related reasons, the safest thing to do is put them on a leave of absence. This is less risky than terminating them or forcing them to resign their position. The leave of absence may be for a period of weeks or a few months, while you make changes in your workplace and more health and safety information becomes available. Document this using our Leave of Absence Request Form.

If you have done everything above, and an employee is absolutely unwilling to return to work regardless of any and all accommodations, then this may need to be treated as a leave of absence or voluntary resignation depending on your state. Fear, all by itself, is not a valid reason for not working. 

  • “I am making more on unemployment than I would coming back to work.”

On one hand, we can all appreciate the dilemma that these employees are in. We certainly don’t want them to start working the limited hours that are available and lose their unemployment benefits, resulting in a huge drop in their overall income. Especially if it is unclear when they will be able to get back to full capacity work.

On the other hand, the special $600 unemployment benefit will not last forever—it ends July 31st—nor will regular unemployment benefits. Employees can roll the dice on the future and turn down employment at your office, hoping to earn unemployment benefits for some number of weeks or months, and then return to the workforce. However, when that time comes their employment opportunities may not be as plentiful as they think. This is their dilemma to navigate, not your problem to solve.

Consider working with your employees to solve the problem. As long as the $600 ‘kicker’ is in place, the goal is having your employees receive weekly compensation from you that doesn’t exceed their weekly unemployment (see example below). Therefore, they work for you (benefiting them and you); they still qualify for unemployment; and they still receive the extra $600. We recommend starting slow and keeping their weekly earnings well below their weekly regular unemployment amount, and gradually ramping up. 

Perhaps you can spread the hours among several employees so that each person is working, yet is still eligible for unemployment benefits.

When you need someone back at full capacity, they should recognize the opportunity and return to work, even if this means a slight drop in their total compensation. If they refuse, then they are effectively resigning their position.

Example: 

  • The employee’s regular weekly unemployment amount is $350.
  • They are also receiving the extra $600 kicker unemployment.
  • Total weekly compensation: $950. 
  • In theory, if they start working with you again, and their weekly wages stay under $350, then they will continue to be eligible for both regular unemployment and the extra $600 amount. 
  • If their weekly wages were, say, $250, then they might receive $100 in regular unemployment, and the $600 extra unemployment, for a total of $950. 
  • However, if their actual wages were $375 for the week, then they would lose both regular unemployment and the $600 kicker, and their total weekly earnings would only be $375. 
  • Therefore you can understand their hesitation about coming back to work. 

 

Important Considerations:
  1. Is your employee in a protected class? (Race, religion, age, sex, color, national origin, etc.)
  2. Is your employee covered under state or federal disability protections that require potential accommodations?
  3. Is this employee on a leave of absence or was recently on a leave of absence?
  4. Is this person pregnant?
  5. Is the employee on a worker’s compensation leave?
  6. Did the employee recently report something to you, such as an OSHA or wage-and-hour concern?
  7. Did the employee recently report harassment or discrimination to you? 

If the answer to any of these is “Yes” then you absolutely need to proceed with extreme caution. What does extreme caution look like? Documentation, reinstatement rather than termination, keeping the person employed in their current capacity, addressing their concerns and complaints, and discussing your situation with an HR Specialist.  

 

I’ve read all of this, what else can I do to be careful and still reopen my business?

Look carefully at the phasing in of employees. Who do you need and when? In determining who comes back first, avoid looking at any factors that are protected, such as pregnancy status, high-risk for COVID-19, family members at high-risk, and other protected classes. 

Consider a two-Phase approach to opening back up:

Phase 1: only a handful of initial employees, the ones you need to restart the operations, get the office ready, contact your customers/patients, and handle the first trickle of business. 

Phase 2: this will happen once your office can operate at a more full and complete level. You will need most or all of your employees at or near full capacity. 

Contact your employees and explain your two-Phase approach. Initially, put it out to all of your employees equally, without any preference or pre-qualifying by you. Ask who is willing to come in for Phase 1 work. 

If you get enough employees for Phase 1, great! Put them to work and proceed to Phase 2 when appropriate. 

If you don’t get enough employees for Phase 1, then you will have to do reinstatement proceedings as outlined above.

Click below to view and download the Reinstatement Letters

Reinstatement Recall LetterReinstatement Recall Letter For Job Changes