Important Items to Consider When Rehiring Employees After COVID-19 Related Layoffs

Employee layoffs and reductions in force are emotionally charged, difficult events that carry high levels of risk and liability. For those businesses who are now reopening and recovering, there is rightfully so a sense of urgency and celebration tied to welcoming previously laid off workers back. However, it is critical that HR professionals recognize that rehiring also requires liability consideration, even if those you are hiring were employees only a few short months ago.

Here is a short check-list containing important considerations that should be addressed when rehiring employees after COVID-19 related layoffs.

Legal/Policy Considerations:

1. Is there a policy in place for recalling laid off employees?
2. Are all laid off workers being asked back? If not, what is the criteria you have used to select those who will be rehired?
   • You need to consider legal issues related to bringing back only certain employees.
   • Failure to carefully review which workers will be recalled can be result in rehiring decisions that can be considered discriminatory.
   • An objective, fairly applied, and fully documented recall process is critical.
3. Were employees provided with severance upon layoff?
   • If employees were provided with severance pay, will they be asked to pay back any part of this severance package?

Steps to Take Pre-Hire:

1. Prepare to notify former employees of your intent to rehire. This can be done by phone, email, video chat, or any other appropriate medium.
2. Send new offer letters and any applicable wage notices.
   • Will the terms of the new offer be the same as they were pre-layoff?
   • Is each employee returning to the same position? If not, will there be a material difference in their new role?
3. Given the break in service, will a new background check or drug test need to be administered in accordance with your new hire policies?

Form I-9 Requirements

1. Employees whose employment authorization status has not changed from their previous Form I-9 do not need to provide additional documentation. The employer needs to provide the rehire date and any name changes in Section 3, and sign and date the form.
2. For employees whose previous Form I-9 indicates that employment authorization has expired, the employer must reverify employment authorization in Section 3 and provide the rehire date. If the previous Form I-9 used is not the current version, the employer must complete Section 3 on the most up to date version of the form.
3. For employees whose Section 3 is already used but you are rehiring them within three years of that Form I-9’s original execution, it is permissible to complete Section 3 on a new Form I-9 and attach it to the previously completed form.
4. For employers required to physically examine documents upon hire or rehire, the Department of Homeland Security (DHS) has deferred the physical presence requirements for employers that have employees “taking physical proximity precautions due to COVID-19” allowing such employers to inspect Section 2 identity and employment eligibility documentation remotely via video link, fax, email, or other similar means within three business days of hire.* The employer must retain copies of these documents. Once normal business operations resume, employees whose documents underwent remote verification must report to their employer within three business days for official in-person document verification. Once an employer has physically inspected the document, they should enter “COVID-19” in the Section 2 “Additional Information” field as the reason for the physical inspection delay. They should also state “documents physically examined” followed by the date of inspection in either Section 2 or Section 3, as appropriate.

*Please note that these exceptions are only made for employers and workplaces that are operating remotely. No exceptions are made if employees are physically present at a work location.

Post-Hire Considerations:

1. New hires should be sent all paperwork typically provided (i.e. federal and state tax forms, direct deposit forms, required leaves and policy notifications, etc.).
2. Decide if you will adjust the recalled employee’s service date by bridging the time the employee was laid off, or if you will treat the employee as a new hire as it relates to PTO accrual rates, service anniversaries, etc.
3. Provide benefit enrollment forms to new hires (check with insurance broker or insurance carrier regarding rehires), making sure to take into consideration whether the newly rehired employee had been on COBRA (change of status).
4. Review terms of other benefit plans or employee programs that may have a length of service component to see what is specified (if anything) as it relates to rehired employees (i.e.– vesting provisions of a 401(k) plan).
5. Review state sick leave laws to determine whether the employer is required to reinstate previously unused state mandated sick leave upon rehire.

Other Considerations:

Unfortunately, the workplace these returning employees are returning to may not resemble anything close to the workplace they left. Here are some questions to ask yourself to prepare for the return of a newly rehired employee:

1. What if an employee does not want to return or is not ready to return to a physical office?
2. Will  employees be allowed to work remotely? Remember, consistency is key in making these decisions.
3. Do you have guidelines in place for return to work that comply with the recommended CDC guidelines? This could include social distancing requirements, staggered schedules, and the use of PPE.

Rehiring employees that were previously laid off is an exciting sign that your organization is moving forward. However, the steps taken when recalling these workers must be managed thoughtfully and carefully.

If you have any concerns of questions about rehiring previously laid off employees, we can help. Contact us at info@OperationsInc.com or (800) 307-5513.