Return to Work: Getting Back to Business
Resources to help guide your return to more normal business operations, including state guidance, FAQ’s, best practices, and other valuable tools.
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State Return to Work Guidance
Highlights and links to state resources, including Opening Orders, Shelter in Place, Leave Laws, Garnishments, and more.
Frequently Asked Questions
Answers to common questions around workplace safety, re-hiring processes, and applicable laws and regulations.
Return to Work Guidelines from CDC
As businesses begin to resume full operations or phase in to re-opening during the COVID-19 pandemic, employers are presented with an opportunity to update or develop a preparedness plan that can help mitigate transmission.
Implemented plans – specific to your place of work – should include up-to-date information from state and local health officials, as well as identify any tasks at work with potential exposure to COVID-19 along with measures to help eliminate or mitigate exposure.
When developing a plan, the CDC recommends having conversations with employees and/or their union representatives to discuss potential changes and to gather input.
Return to Work FAQs
As states begin to re-open and businesses start returning to more normal operations, we at Paychex remain dedicated to serving you, your employees, and your business. Please see below for guidance and best practices around some common questions related to these new challenges.
Changes in Staff
Changes in Staff
What should I consider if I am bringing back part of my workforce?
Establishing and applying fact-based criteria that are consistent with your legitimate business needs and documenting the reasons for your decisions are important considerations when returning employees to work. Remember to also review the requirements in any written employment agreements, or collective bargaining agreement if you have unionized employees, to make sure that you’re remaining in compliance.
Employer decisions cannot be based on reasons that violate federal, state, or local anti-discrimination laws. For example, because an employee is a member of a group protected by these laws, has made complaints that are legally protected (i.e. complaints about discrimination or harassment), has taken leave that is protected under federal, state or local law, or because the employer believes that an employee will request leave when called back to work, including EPSL or EFMLA. If you have questions about these laws, or your selection process appears to violate them, consult with your legal counsel.
What date should employees be recalled or rehired?
Employers receiving loans available under the CARES Act and seeking loan forgiveness for payroll costs should consider the following:
- Loan forgiveness will be reduced for any reductions in FTEs. Employers should recall or rehire employees no later than June 30, 2020, to receive unreduced loan forgiveness for layoffs occurring prior to April 26. We are still waiting on official guidance, however, it appears rehires should occur more quickly for unreduced loan forgiveness for May and June since loan forgiveness is reduced proportionately for reductions in Full-Time Equivalent (FTEs).
- Loan forgiveness will be reduced by the amount of any wages or salary in excess of 25%.
What do I have to communicate to returning employees?
Employers should consider issuing return to work letters that:
- Address if employees will be recalled/rehired into the same position.
- Confirms pay rates for returning employees. Note: Employers receiving loans under the CARES Act and seeking loan forgiveness for payroll costs have certain obligations to restore and maintain compensation and benefits levels.
Additionally, if the organizational structure has changed, employers may also consider determining the skills of individuals and appropriate positions to offer when returning their employees to work.
I am ready to bring employees back, but our workload and workflow will likely change. What should I consider if I change my employees’ duties to fit our new needs?
Employment contracts and/or collective bargaining agreements may affect how duties can be altered for certain employees. For example, different duties may mean that an employee who was exempt from receiving overtime pay is now entitled to receive it. Remember to factor in compliance with federal, state and local wage and hour laws and consider consulting with your legal counsel if you have any questions. All business decisions should be made on fact-based criteria, should remain consistent with your legitimate business needs, and cannot be based on reasons that violate federal, state, or local law.
When is it safe for my employees to return to work?
There is no specific time for this to occur. States and local jurisdictions have their own laws pertaining to essential and non-essential businesses. Individual businesses, using those laws and guidance, also might have their own policies relating to essential and non-essential employees that dictate when individuals can return to an office or workplace setting. The following scenarios are among the most frequently asked.
Confirmed COVID-19 with no illness: People who contract COVID-19 may be asymptomatic and never display any signs of illness. However, if an employee tests positive, they can still transmit the disease, so the CDC recommends they quarantine for 14 days to mitigate spreading the virus.
Confirmed COVID-19 with illness not requiring hospitalization: Mild symptoms of COVID-19 range from fever, chills, and a cough to muscle and body aches, headaches, and a soar throat (to name a few). Individuals with confirmed cases should quarantine for 14 days from the time of onset of symptoms, and available data indicates the clinical recovery time is two weeks.
Confirmed COVID-19 with illness requiring hospitalization: The more severe symptoms of COVID-19 are high fever, shortness of breath or breathing difficulty, loss of taste or smell, nausea, and vomiting. The available data on clinical recovery time indicates three to six weeks, and the CDC recommends that isolation after recovery should be at least three days (72 hours).
How far apart should employees be from each other at work?
Employers should consider implementing policies and practices for social distancing, which encourages employees to stay six feet away from each other whenever possible. This could include staggering employees’ on-site hours or attendance, allowing employees to work remotely if possible, and reconfiguring work sites and spaces to allow employees to be further apart. Please review your state and local health department resources and federal OSHA guidelines for any additional requirements or guidance.
What specific COVID-19 protective equipment should I provide for my employees?
Employers can require employees to wear safety equipment like face/eye protection, gowns, gloves, or other equipment suggested by OSHA, and should review the guidance published on OSHA’s website for recommended practices.
If either state law or the employer requires employees to wear protective equipment in the workplace, the employer must pay for it. Additional requirements may also apply if your business is already subject to OSHA’s Bloodborne Pathogens standard or other state or federal industry-specific requirements.
Some states now require certain employers to provide masks, other face coverings, or gloves for employees. For more information, please review your applicable state’s COVID-19 resources.
What are some other appropriate actions related to the COVID-19 health pandemic I should consider?
Employers should consider:
- Sending employees home immediately if they show symptoms of COVID-19. Consult with your Paychex HR professional on recommended next steps.
- Exploring if, and under what circumstances, employees may work from home.
- Consulting their Paychex HR professional prior to asking employees any medical-related questions, including possible temperature screening.
- Reviewing and/or determining employee eligibility for leaves of absence (paid or unpaid) under the Families First Coronavirus Response Act (FFCRA), state or local law, or company policies.
- Exploring whether to provide employees with personal protective equipment (PPE), such as masks and gloves.
Can I require my employees take a COVID-19 vaccination?
The U.S. Equal Employment Opportunity Commission (EEOC) has updated its COVID-19 technical assistance guidance document, What You Should KNow About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
The guidance addresses the applicability of federal equal employment opportunity laws, including the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and Title VII of the Civil Rights Act of 1964 if an employer requires the COVID-19 vaccination when it is available.
The EEOC guidance provides that under the Americans with Disabilities Act an employer who requires COVID-19 vaccinations should take note that a mandatory vaccine program requires the employer to show that an unvaccinated individual would post a direct threat due to a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.
The EEOC guidance further indicates employers need to also consider reasonable accommodations for employees who are unable to receive the vaccine for religious reasons.
If an employer requires an employee receive the COVID-19 vaccinations, the EEOC guidance also addresses the implications of pre-vaccination medical questions (if the employer is administering the vaccine or the employer contracts with a third-party to administer the vaccine on the employer’s behalf).
Employers considering requiring COVID-19 vaccination for their employees should review the EEOC guidance and consult with their legal counsel.
When my employees return, I want to offer additional pay to recognize their hard work during this pandemic. How should I do this?
If an employer chooses to offer additional pay, it must be included in the calculation of the employee’s “regular rate of pay,” which is used to determine the overtime rate for individuals who are not exempt from overtime requirements. Establish criteria for awarding this extra pay and take care to avoid the appearance of discrimination, as employment decisions, including pay changes, cannot be based on reasons that violate federal or local law. Currently, state laws and the Fair Labor Standard Act (FLSA) do not require “hazard pay”, however, there may be requirements for some government employees.
Do employees need to complete a new Form I-9?
If employees were furloughed, updating their Form I-9 is generally not required. If employees were terminated, and then rehired within three years of the date their previous Form I-9 was completed, you may either complete a new Form I-9 or complete Section 3 of their original Form I-9 to indicate the rehire.
Can I change my current bonus plan in light of the COVID-19 pandemic?
This would depend on the terms of your bonus plan. Before making any changes or withholding payments to employees, review the terms of your plan with your legal counsel.
What should I consider when reviewing the status of health plans, cafeteria plans, and other fringe benefit plans, such as vision and dental?
Employers should consider reviewing all agreements, plans, and policies to determine if any modifications are warranted regarding eligibility and employee cost-sharing. A break in service of 30 days or less within the same calendar year may result in the reinstatement of the employee’s FSA. Contributions will be recalculated to deduct the full amount by the year’s end. If there is a break in service of more than 30 days, or if the employee is rehired in a new calendar year, new FSA elections may be required. Note: Remember to also check the terms of cafeteria plans, if applicable, and consider potential special enrollment rights and qualified life event election changes (typically 30-day periods). To evaluate plan eligibility changes, consult with a third-party administrator, insurer, and/or agent and consider Collective Bargaining Agreement(s), if applicable.
What are some additional items to consider when rehiring employees?
Employers should consider:
- Providing a new Form W-4 in case employees want to make changes upon returning to work.
- Ensuring “new hire” employee documents (i.e. current employee handbook, emergency contact information, etc.) are properly updated and executed.
- Determining implications for 401(k), 403(b), and pension plans.
- Evaluating executive compensation and severance arrangements.
I have a Paychex HR Professional, what other items can they help me with?
Paychex HR Professionals can assist with:
- Determining if drug tests will need to be conducted;
- Explaining if state or local paid sick leave laws require prior accruals to be reinstated;
- Reviewing internal policies on rehiring to determine any reinstatement of accrued PTO or vacation time;
- Addressing state or local paid family leave laws under which contributions must be resumed, and if new direct deposit authorization forms need to be completed.
I’m reopening my workplace, but some of my employees are refusing to return. What can I do about employees refusing to return to work?
An employee’s reason(s) for not returning may make them eligible for some type of leave required by federal or state law, so it is important to engage with your employees to understand why they are refusing to return before taking any action. For example, an employee concerned about their own health condition may be entitled to a reasonable accommodation under the ADA or state law, or an employee caring for a child because their child’s school or daycare is still closed may be entitled to EPSL or EFMLA.
If your employees are raising reasonable COVID-19 safety concerns, their complaints or even their refusal to work may be protected under OSHA or the National Labor Relations Act, even if your workplace is not unionized. Discuss these issues with your legal counsel before terminating your employees or imposing any other discipline.
We’ve resumed operations, but schools and daycares centers are closed, and my employee’s young children are home. Can I allow employees to telework due to coronavirus related reasons?
If you employ less than 500 employees, your employees who cannot work due to COVID-19 related reasons may be eligible for two weeks of Emergency Paid Sick Leave (EPSL). If your employees are unable to work because their child’s school or daycare provider is closed, they may be eligible for two weeks of EPSL and an additional 10 weeks of EFMLA. If you allow your employees to telework, they may be able to telework rather than take this leave. But if they cannot take advantage of a teleworking option due to their childcare obligations, they may still be eligible for EPSL or EFMLA leave.
My employees accrue paid time off. Should this leave continue to accrue, even when employees are on temporary layoff or furloughed?
This would depend on your state’s wage and hour laws and your own policies. Important considerations include whether your employees remained on your payroll during the temporary layoff or furlough, and whether your state has extended its rules relating to leave in response to the COVID-19 pandemic.
Consider reviewing your existing written leave and leave accrual policies and your obligations under any written employment agreements and/or collective bargaining agreement, if your employees are unionized. Even if employees have no accrued leave left, they still may be eligible for mandated paid leave under the EPSL, EFMLA, state law, or to unpaid leave as a reasonable accommodation for a disability.
What do I do if an employee elects COBRA, State Continuation, or other conversion rights?
Employers should consult with the third-party administrator/insurer and review their benefits plans to determine any waiting period requirement for health and other benefits to determine when the employee can re-enroll in active coverage and to identify any other issues resulting from a break in service.