April 28, 2020

Planning For The Rebound: Step 2 – Do I Have To Bring Back Furloughed or Laid Off Employees?

On Monday, April 27, San Francisco and five other Bay Area counties announced their decision to extend shelter-in-place orders through the end of May. While California has begun to flatten the curve of daily new COVID-19 cases, a return to the workplace may still seem like a distant prospect for most California employers.

With remote work here to stay for the time being, now is the time to consider the issues that may arise as you ramp up operations and gradually bring employees back into the office.

One of the initial questions that may cross your mind is whether you should or must bring back your former employees, either from furlough or layoff. What if you would prefer to post job openings and solicit new applicants instead?

The answer, of course, is everyone’s favorite lawyer answer: “it depends.” For employers who have furloughed employees and communicated the intent to return those individuals to work at some point in time, the best practice is to follow through and reinstate those individuals to their roles. After all, this is what you promised in the first place. Credibility in a time of crisis is key, so if you told furloughed employees they would be returned to their positions when the crisis abated, your credibility rests on your ability to keep your promise.

But what if returning to work is not possible for a furloughed employee because of illness, or a need to take care of children who are home because of closed schools? In that case, once employees have exhausted leave under the FFCRA, state, or local laws, you have a harder decision to make. Be sure that any accrued paid time off or vacation is paid out upon notice to the furloughed employees that they will not be returned to work, if this was not done at the time of the furlough.

The answer is less clear where employees were laid off and the employment relationship was severed entirely, without a promise of future employment. Before posting a job opening, consider the reality that your former employees may be job hunting and are likely to stumble upon the posting. Assuming you do not have significant performance or conduct concerns about the former employee, consider offering him or her the opportunity to be considered for the position. This will allow you to assess whether there are other candidates who better meet the organization’s needs, while minimizing the risk that a former employee will lodge a discrimination complaint against your organization.

The legal issues that your organization may face will be more complex if an employee who was laid off or furloughed recently took a protected leave of absence, or previously lodged a discrimination or retaliation complaint with human resources. When in doubt, it’s a good idea to talk through any concerns with your legal counsel before making a final decision on how to proceed.


Questions about COVID-19 and the workplace? Contact the Hirschfeld Kraemer lawyer who normally provides your legal advice, or you can reach out to China Westfall in the San Francisco office, cwestfall@hkemploymentlaw.com, (415) 835-9067.

Did you miss Step 1 of our Planning For The Rebound series? Click here to see “Requirements For Returning To The Workplace.

For additional employer-focused information about COVID-19:
Click here to see the Hirschfeld Kraemer EMPLOYER’S GUIDE TO CORONAVIRUS