FAQs Returning to Work

In this article: 

  • Return-to-Work Plan?
  • Steps to take as you develop a return-to-work plan. 
  • Cleaning and Disinfecting Your Facility
  • Can we screen employees returning to work for COVID-19?
  • How can employers best comply with federal anti-discrimination laws while responding to the corona-virus crisis?
  • We are reopening after business closure due to COVID-19. Can we bring some employee back, but not others? 
  • Can employee refuse a recall to work and still collect unemployment?
  • Do you have to bring the employee back in the same position? 
  • Can Benefit Coverage be changed mid-year?
  • Are employers able to reduce an exempt employee's salary?
  • What is an SUB plan?
  • Is the SUB Plan new?
  • How Does the SUB Plan Work?

Return-to-Work Plan 

  • Provide detailed workplace safety procedures, including written guidance on best practices for hygiene and social distancing.
  • Address any safety-related concerns that employees may have, including identifying the appropriate company officials with whom to raise such concerns.
  • Handle corona-virus-related leave issues.
  • Manage corona-virus-related accommodation requests.

Check out the Back-to-Work Checklist

Steps to take as you develop a plan

  • Review any existing policies that were changed formally or in practice as a result of COVID-19, such as remote work policies, and revise as needed.
  • Adopt policies on reporting COVID-19 exposures or symptoms.
  • Create frequently asked questions for managers and front-line supervisors on how to respond to corona-virus-related issues they may encounter.
  • Adapt benefits to changes in employment status of returning workers.

Cleaning and Disinfecting Your Facility

Everyday Steps, Steps When Someone is Sick, and Considerations for Employers

You dont have to hire a professional cleaning service, here are best practices directly from the Centers for Disease Control and Prevention.

Can we screen employees returning to work for COVID-19?

Yes. Generally, inquiries about an employee’s health or a medical exam (like a temperature check) would not be allowed, but the Equal Employment Opportunity Commission (EEOC) has stated that screening employees for symptoms of COVID-19 is allowed since it is a direct threat to others in the workplace. Because of that, you may inquire about symptoms related to the virus, require self-reporting by employees, and take employees’ temperatures. 

Known symptoms of COVID-19 include fever, cough, chills, shortness of breath or difficulty breathing, muscle pain, headache, sore throat, and sudden loss of taste or smell. As the medical community learns more about COVID-19, additional symptoms could be added to this list. Employers can check this page for currently recognized symptoms.  

If you decide to do screenings, make sure you screen all employees; otherwise you may find yourself in the middle of a discrimination claim. And remember that all information about employees’ health — including a lack of symptoms or temperature — must be kept confidential.

How can employers best comply with federal anti-discrimination laws while responding to the corona-virus crisis? 

The Equal Employment Opportunity Commission (EEOC) issued updated guidance for employers about reasonable accommodations under the Americans with Disabilities Act (ADA) and more.

The EEOC guidance has also helped clarify important issues regarding older workers and pregnant workers. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.

We are reopening after business closure due to COVID-19. Can we bring some employees back, but not others? 

Yes. If you are recalling some positions, but not others, you should document the business reasons why only those positions were recalled. If you are recalling some employees in a certain position, but not everyone in that position, you should document the objective, job-related criteria you used to decide which employees to bring back. Seniority or previous job performance, for example, would be acceptable criteria and relatively easy to defend if you are ever challenged.

Can employees refuse a recall to work and still collect unemployment? 

In most cases, no, but ultimately it will be up to the state to decide on a case-by-case basis.

When an employer recalls an employee to work, it must notify its state unemployment agency of the offer of work made to that individual. This should stop the eligibility for benefits based on work not being available.

Depending upon the circumstances, however, an individual may be unavailable for work due to COVID-19. The individual may be caring for a child whose school or caregiving place is closed or still be caring for someone diagnosed with COVID-19. Additionally, he or she could have some reason to feel unsafe at the workplace due to the pandemic, which might be deemed allowable. Therefore, if the individual does not accept the recall notice, he or she will have to continue to certify with the unemployment agency as to why he or she cannot work due to COVID-19, or for another qualifying reason.

If an employer has any reason to believe an employee might refuse a recall for unlawful reasons, it may wish to educate him or her on the consequences of unemployment fraud. These could include not only reimbursing the state for benefits paid but also civil and criminal penalties, including incarceration.  

Additionally, through the end of July 2020, unemployment recipients will receive an additional $600 per week on top of their regular unemployment insurance entitlement through provisions under the CARES Act. In many cases, this will provide more money than the employee normally made when working, and these employees may feel less inclined to return to work before August, and therefore, refuse the recall. Employers may advise these employees that the offer of work has been reported to the state, and unemployment benefits will stop as of the intended start date. Any dishonest statements made by the employee to the unemployment agency would be considered fraud and may be subject to the penalties mentioned above. 

As an employer it is your right and obligation to report updates to prevent abuse and fraud on this benefit >> Report Refusal

Do you have to bring the employee back in the same position? 

No, due to adjustments you may have had to make with your business, job descriptions and positions may have changed.  Open communication with your employees and letting them know of job responsibility changes is key.

If you are updating job descriptions it is important to review with employee and keep documentation.

If an employee refuses the job offer due to changes in position or responsibilities, you are obligated to report the refusal >> Report Refusal

Can Benefit Coverage be changed mid-year?

Yes, employees may be permitted to make changes to their coverage if they have a qualifying life event. 

  • Legal marital status. Events that change an employee's legal marital status, including marriage, death of a spouse, divorce, legal separation and annulment.
  • Number of dependents. Events that change an employee's number of dependents, including birth, death, adoption and placement for adoption.
  • Employment status. Any of the following events that change the employment status of the employee, the employee's spouse or the employee's dependent: a termination or commencement of employment, a strike or lockout, a commencement of or return from an unpaid leave of absence and a change in worksite.
  • Dependent satisfies or ceases to satisfy eligibility requirements. Events that cause an employee's dependent to satisfy or cease to satisfy eligibility requirements for coverage because of attainment of a certain age, student status or any similar circumstance.
  • Residence. A change in the place of residence of the employee, spouse or dependent.
  • Adoption assistance. For purposes of adoption assistance provided through a cafeteria plan, the commencement or termination of an adoption proceeding.
  • Entitlement to Medicare or Medicaid. If an employee, spouse or dependent becomes entitled to Medicare or Medicaid, the employee may make a prospective election change to cancel or reduce coverage of self, spouse or dependent. In addition, if an employee, spouse or dependent who has been entitled to such coverage under Medicare or Medicaid loses eligibility for such coverage, the employee may commence or increase coverage of self, spouse or dependent.
  • Judgment, decree or order. A judgment, decree or order resulting from a divorce, legal separation, annulment or change in legal custody, including a qualified medical child support order that requires health coverage for an employee's child or for a foster child who is a dependent of the employee.
  • Special requirements relating to the Family and Medical Leave Act (FMLA). An employee taking leave under the FMLA may revoke an existing election and make another election for the remaining portion of the period of coverage.

A plan may adopt all, some or none of the Internal Revenue Service (IRS) status change events. The IRS specifies that election changes during the plan year must be on account of and consistent with the eligible change in status. An example would be decreasing the FSA contribution amount because of a legal separation or divorce.

Are employers able to reduce an exempt employee's salary?

As a cost-saving measure during the COVID-19 pandemic, some employers are considering reducing exempt employee pay with or without a corresponding reduction in hours worked. Under the Fair Labor Standards Act (FLSA), employers are generally permitted to make a prospective reduction in an exempt employee's salary that is not related to the quality or quantity of the work performed.

A reduction in an exempt employee's pay without a change in work hours is permitted as long as the change is prospective, without discrimination, and the minimum salary requirement is still met (currently $684 per week under the FLSA although state requirements may be higher).

When reducing salary due to a reduction in hours worked, the U.S. Department of Labor (DOL) has previously issued guidance for employers facing economic challenges due to circumstances such as the current pandemic.

What is an SUB Plan? 

A Supplemental Unemployment Benefit Plan is a tax exempt, Section 501 (c) (17) plan or trust established to provide severance pay to workers laid off due to a reduction in force or plant closing that supplements state unemployment insurance benefits. During a RIF, when cash is low, severance pay and related payroll taxes can be costly for an employer. Establishing a tax qualified plan that allows an employer to pay weekly severance payments to supplement state unemployment benefits not only lowers the payroll tax obligation, but lessens the impact of lump sum payments on organizational cash flow.

Is the SUB Plan new? 

No, far from it. These plans have been around since the late 1950s, when the unions were concerned with mechanization and cyclical industries where seasonal and permanent layoffs were frequent, and unemployment benefits were not substantial enough to support a laid off worker. Strongly fueled by the auto and metal industries, SUB plans were first almost exclusively used in collective bargaining agreements, but the tax code applies to all employers, and as of late, these plans are getting more attention from corporate America.

How does the SUB Plan work? 

SUB plans can be funded by employers only, employees only, or a mix of both. For non-union environments, SUB plans are generally funded by the employer only, and the funds placed into the plan take the place of normal severance payments that would incur FICA, FUTA and SUTA taxes, saving the company money up front. The employee also gains, as payments from a SUB plan are not subject to FICA taxes. The plan's payment structure must take into account state unemployment benefit rates, and combined unemployment and SUB plan payments must equal what the laid off worker's wages were before the layoff. For instance, if the state unemployment benefit is $300 per week, and the employee's weekly pay had been $600 per week, the employer would fund the trust with $300 to make up the difference, and the laid off worker would receive "full" severance pay between the two payments. The employer only has to front $300 per week, and they save on payroll taxes, both of which help to reduce RIF costs and constraints; the employee takes the $300 from the SUB plan without incurring FICA taxes, so they come out ahead as well.

SUB plans have many requirements such as a written plan document and timely IRS filings, and must be used only by workers laid off or with reduced hours due to a reduction in force or a plant or operation closing. A great deal of time can be spent administering such a program, but there are several providers that specialize in these plans, and can provide soup to nuts administration if need be. For more information, see IRS Publication 557.

Disclaimer: This information is provided as a self-help tool and does not constitute legal or financial advice. Laws, regulations and lending products are changing daily and decisions as to whether or how to use this information and/or what actions to take in response to the COVID19 Pandemic are solely those of the employer. The providers of this information disclaim any and all responsibility and liability for its accuracy, completeness or fitness for your particular business purposes.