Phase One of Florida's reopening plan is underway for most of the state. Now is the perfect time for South Florida's business owners and management to prepare to face the novel employee issues that will arise when resuming full operations. If you have been the recipient of a loan through the Paycheck Protection Program (PPP) established by the CARES Act, rehiring certain employees may be necessary to receive full forgiveness. And of course, many businesses are anxious to get back into full swing to start recovering losses from Q1 and Q2. However, we are in uncharted territory. The laws affecting employers are ever-changing, and it is still unclear how courts will apply new and existing laws to employee claims that are likely to arise post-pandemic. Further, businesses everywhere are consumed with how to provide safe and healthy work environments to employees, and manage employment issues like never before. To assist employers, we have provided general guidance for managers on how to navigate tricky employment issues which could be hotbeds for employment litigation in the coming months.

• Rehiring only a portion of furloughed workers. Employers should always consider their existing policies, employment agreements and collective bargaining agreements when deciding which employees to rehire. Beyond policies, when employers seek to restore only a portion of workers to the workplace, such decisions must be based on legitimate, nondiscriminatory reasons to avoid potential liability for discrimination claims, such as seniority, job criticality and operational needs. Further, decision-makers should not base the decision to not rehire an employee on perceived "high risk" of contracting COVID-19, including older or pregnant employees. The Equal Employment Opportunity Commission (EEOC) released guidance warning employers that employment decisions based solely on an employee's high-risk status violates the ADA. We therefore highly recommend employers document their justifications for rehiring employees just as they would in a normal application process should these decisions be questioned later.

Another consideration is whether employers need to complete their standard new-hire process to return employees to work. For furloughed or laid-off workers, it may not be necessary to go through the entire onboarding process as you normally would for a new employee. However, this may be an opportune time to confirm that employees have complete personnel files, including Form I-9s, acknowledgements of handbooks, contact information sheets, etc. For employers who wish to rehire employees who were terminated, as opposed to furloughed, we recommend having the former employee complete an application and any other necessary documentation so that the employee's employment history is consistent. This includes either completing a new Form I-9, or, for employees rehired within three years of the completion of the initial Form I-9, completing Section 3 of the current version of Form I-9 related to reverification and rehires.

• Managing an employee who refuses to return to work. Under the PPP, 100% of the loan can be forgiven depending, in part, on the average number of full-time employees the employer has during the "covered period" of the loan as compared to the number of full-time employees employed prior to the pandemic. However, a borrower can increase the amount of the loan which may be forgiven if it rehires previously laid-off employees by June 30. Therefore, there is a real incentive for employers to bring back employees. But, what happens if an employee refuses to return to work? The Small Business Association (SBA) issued guidance recently which advised that a PPP borrower's loan forgiveness amount would not be reduced if a laid off employee refused to be hired as long as the employer made a good faith offer of rehire, in writing, documented the employee's rejection of the offer. Further, an employee's refusal to work may impact that employee's ability to receive, or continue to receive, unemployment benefits. Thus, employers have all the more reason to make sure that offers of rehire are made in writing, and the circumstances of any employee's rejection of the offer is well documented.

Depending on why an employee refuses to come back to work, an employer may also need to consider the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA). Of course, employers also need to stay current on local and state stay-at-home orders which may still prevent certain employees from returning to work. If an employee's refusal to work is based on their own heightened risk of illness due to COVID-19, the employer will want to treat the refusal to return to work as a request for an accommodation. Further, such a statement may also be considered notice for the need for leave under the FMLA for eligible employees who are employed by covered employers. FMLA leave may be provided to an employee whose refusal to return to work is premised on the need for them to provide care for certain family members due to their own serious health condition.

Employers with fewer than 500 employees must also keep in mind the provisions of the FFCRA which allow for paid leave for certain COVID-19 related circumstances.

As a general practice, employers facing requests for accommodations or leave should remain understanding and flexible in order to find solutions that consider both the needs of the company and the employee, as well as stay compliant with federal, state and local laws.

• Requiring employees to submit to medical test or answer health-related questions. The Americans with Disabilities Act (ADA) prohibits employers from making disability-related inquiries and from requiring medical examinations. However, an employer is allowed to make a disability-related inquiry or medical examination of a current employee if the inquiry or examination is job related and the employer has a reasonable belief that the employee's ability to perform essential job functions will be impaired by a medical condition or an employee will pose a "direct threat" due to a medical condition. Recently, the EEOC confirms that the COVID-19 pandemic meets the "direct threat" standard. Thus, employers may ask employees who report feeling ill at work, or who call in sick, if they are experiencing symptoms of COVID-19. Further, employers may measure an employee's temperature at any time—and may want to consider measuring the body temperatures of those employees who are returning to work after being furloughed or laid off. NOTE: Employers must keep employee's medical information confidential and records related to test results must be kept in a file separate from the general personnel file. Further, employees conducting the medical tests should be issued personal protective equipment (PPE) and trained on proper use of PPE.
• Keeping a safe workplace. During a pandemic, it is especially crucial for employers to make sure that they are providing a safe workspace for all employees. Unsafe workplaces can lead to excessive employee absenteeism, which may cause business interruption, decreased productivity and decreased employee morale. Moreover, failure to maintain a safe workplace may result in a violation of the Occupational Safety and Health Administration's (OSHA) General Duty Clause, which states that all employers are to furnish employees with a place of employment "free from recognized hazards that are causing or are likely to cause death or serious physical harm" to employees. All employers, regardless of size or industry, suffer exposure to OSHA penalties, which can be significant, upon a finding of a violation. Employers should also be mindful of OSHA's recordkeeping and reporting requirements as it relates to COVID-19, should an employee test positive for COVID-19 after being exposed to the virus at work under certain circumstances.

To avoid violating the General Duty Clause, employers should review OSHA's guidance on preparing workplaces during a pandemic. While certain industries have specific requirements, all employers should heed OSHA's recommendations related to social distancing, creating appropriate personnel policies and adhering to CDC, state, and local health guidelines. Taking these steps immediately demonstrates an employer's dedication to its employees and builds trust—essential in today's uncertain environment.

• Revising your handbook and employee policies. All employers would be well-served by reviewing their current policies to make certain both employees and management are clear on company expectations during a pandemic. Updating employee handbooks and policies is always recommended; but now that employers are facing new issues in a fluid employment landscape, well-articulated policies can avoid headaches and lawsuits. Employers should consider, as OHSA recommends, developing emergency preparedness and response plans and policies related to identifying and limiting risk of exposure during a pandemic. This includes social distancing policies for various situations and areas of the workplace, including meetings, break rooms, cafeterias, etc.; protocols related to cleaning cubicles/offices and common areas; and regulations on visitor access. Employers may also want to consider making changes to sick leave and/or PTO policies to accommodate a health crisis. Along those lines, employers with fewer than 500 employees may want to consider issuing a short-term policy related to the FFCRA's Emergency Paid Sick Leave and Expanded Family and Medical Leave Act provisions, which are effective until Dec. 31. If teleworking is an option, employers should consider a set of work-from-home guidelines related to timekeeping, working hours, and confidentiality. Clear, concise, and consistently applied policies and protocols go a long way to ease the minds of employees who are fearful of returning to work.

This list is far from comprehensive, and managers will likely need to field new questions and requests from employees regularly as the nation gears up to get back to business in a rapidly changing world.

Elizabeth P. Johnson is a shareholder at Fowler White Burnett where she focuses her practice on all aspects of labor and employment law. Contact her at [email protected].

Lindsay M. Massillon is an associate at the firm where she focuses her practice on labor and employment law and commercial litigation. Contact her at [email protected].