Legal issues to consider when bringing back employees
Legal issues to consider when bringing back employees
02 JULY 2020 7:15 AM

Attorneys speaking at The Virtual Hospitality Law Conference explained what labor laws and regulations employers in the hotel industry need to keep in mind when reopening their properties.

REPORT FROM THE U.S.—Employers in the hotel industry face a number of challenges as they reopen their properties and bring their employees back to work.

In a series of online presentations through The Virtual Hospitality Law Conference, labor attorneys explained several legal issues hoteliers will navigate as their workforce returns.

Bringing back employees
The employer or a designee needs to be an expert on the state and local reopening orders where their hotels are located, said Andria Ryan, partner at Fisher Phillips. These laws are constantly changing, and someone needs to be an expert.

“Do not reopen or recall or rehire employees in violation of those orders,” she said. “You are simply sending your employees, and perhaps your guests, a message that you just don't really care about their safety and health, and you don't want to send that message, even inadvertently.”

When going through the process of recalling or rehiring employees, the path forward depends on what companies told employees originally, Ryan said. While there are some states that have legal distinctions between layoffs and furloughs, they are effectively describing the same thing: a short-term break in employment in which employees are still on the payroll but not actively working.

If the employer terminated employees, gave them access to COBRA health insurance and now wants to bring them back, that is a rehiring process, Ryan said. For a furlough, that is recalling them, she said. It also matters what employers told employees about how they would be brought back, such as they would be brought back based on operational needs or based on seniority.

Some employees coming back might be hesitant to take on new duties, but unless there is a union or other employment contract specifically outlining an employee’s duties, employers can modify their responsibilities, she said. From an employee relationship standpoint, it’s important to be clear with employees that as they come back they may be asked to take on additional roles as needs arise, and employers should be ready for and sensitive to some pushback.

Employers will need to implement a safety protocol, Ryan said. It’s critically important they put them in writing and give them to employees to explain what they are doing to bring employees back to work safely and help coax them off unemployment, she said.

The extra $600 per week in unemployment benefits laid-off people have been receiving since March will expire at the end of July. While some employers have struggled to bring back employees in April and May because of pay issues, employees will hopefully remember they are just a few weeks away from seeing their unemployment checks drop significantly, she said. As a result, they may be more inclined to work with employers on coming back instead of putting up barriers.

OSHA considerations
One of the real challenges employers have faced is pulling everything together, looking at what they have to do, what they need to do and what they are considering to do, said Aaron Gelb, partner at Conn Maciel Carey.

The Occupational Safety and Health Administration has only issued one citation related to the pandemic so far, but it’s conducting several inspections as it has received nearly 20,000 complaints alleging inadequate workplace protections, he said. OSHA has also opened investigations into 600 to 700 fatality inspections, and those inspections will take time to complete.

“I can assure everyone, for those of us that are OSHA lawyers, OSHA has been very active, very busy, and I expect to see citations starting in the next two to three months,” he said.

One of the most important steps an employer can take is to develop an exposure control plan, a written document that pulls everything together into one place, such as on the company intranet or in a physical handbook, Gelb said. OSHA hasn’t yet required it, though it along with the CDC recommend having one, and several states are requiring it.

It helps make sure the employer doesn’t overlook anything, he said. When there’s a situation, such as an employee testing positive for COVID-19, there’s a chance someone will make a mistake if there’s no written policy or standard operating procedure.

“It helps you communicate to your employees so they know what's going on, so they don't operate under the assumption that you're not taking sufficient measures,” he said. “Maybe it keeps them from complaining to OSHA, so it can improve morale and improve employee engagement.”

The plan isn’t a one-size-fits-all situation, so employers shouldn’t pull something off the internet and print it out without customizing it to their properties, Gelb said. It must be specific to the hazards of the jobs that exist at their workplace, he said.

An exposure control plan should include whatever means employers are taking to eliminate exposure to COVID-19, such has having employees work from home, screening employees and guests, social distancing practices and measures put in place, he said. Cleaning and sanitizing, which will be enhanced and done more frequently, should be included along with the chemicals being used. Whatever face-covering policy and other personal protective equipment are in place for employees and guests should be included.

The plan should also include any training and communication the employer put in place for employees, he said.

Employers should take their time making the plan as it’s an involved process, Gelb said. They need to prepare this plan in detail with specific risk assessments of every aspect of operations at their hotels, such as handling guests coming into the lobby, reducing likelihood of transmission during check-in and managing elevators, the fitness centers and pools.

“Consider all these different elements in the various jobs that your employees are performing in those areas and how you're going to keep them safe,” he said. “You may have different levels of risk depending on the position.”

Documentation is necessary, not just of what employers are doing now but what they have done in the past, Gelb said. OSHA can see what guidance the CDC has issued and when, so inspectors can ask what policies and practices employers had in place any point in time.

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