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COVID-19 Employment Concerns

June 25, 2020 2311

Quick Summary:

Guidance on employment concerns related to rehiring laid off or terminated employees, wages.

Can we lay off employees so they can get unemployment and then rehire them?

In the event of a schedule reduction or practice closure, employers are not required to lay off or terminate employees they intend to continue to employ. Partial unemployment claims are available for employees whose employers want to keep them when there is a lack of work. More information is available on the Employment Development Department (EDD) website.

Can I terminate an employee for refusing to come to work when the office remains open?

This is complicated and shouldn’t be taken lightly. Technically, yes, if an employee refuses work, this would be an indication that the employee is voluntarily separating from employment.

However, in a crisis, employers should be flexible and compassionate. Triage the circumstances behind the refusal and consider whether the reason behind the refusal might fall under protected emergency leave, paid sick leave or reasonable accommodation laws. Thoroughly document requests and the actions taken. More information about emergency leave laws can be found in our COVID-19 FAQs on paid and unpaid time off.

Employers should discuss the protocols in which the practice is keeping the workplace safe, and, if the employee still refuses, the employer could consider offering a short-term personal leave of absence. Employers should offer the use of any available accrued paid sick leave, pay out any accrued vacation or PTO benefits in accordance with practice policy and document agreement and the expected length of the personal leave in writing. Employees and employers should be prepared to extend this leave should the practice remain closed longer than anticipated.

If our staff has agreed to assist with treating patients needing urgent care, should we document that they are comfortable working in the current environment?

As long as there isn’t a direct or imminent threat of harm to the employee and the office is complying with all OSHA and CDC guidelines for infection control, it should not be necessary to have an employee sign any documentation for continued work. You should continue to encourage sick employees and patients to stay home and you should send home anyone who arrives at the office and is exhibiting symptoms of illness.

CDA has provided more information on minimizing employee exposure.

The Department of Fair Employment and Housing (DFEH) also provides additional COVID-19 guidance and FAQs for employers.

Wage replacement during a practice schedule reduction or closure

Employees who have been furloughed or are experiencing a reduction in schedule can file for partial unemployment benefits through the EDD.

More information specific to COVID-19 is available at: https://www.edd.ca.gov/about_edd/coronavirus-2019.htm

In addition to any paid sick leave or vacation benefits available to employees, California has expanded its paid family leave and disability benefits to workers affected by the COVID-19 virus.

Wage replacement may be available to those who are certified by a medical professional to be sick with COVID-19, are caring for a family member who is certified by a medical professional to be sick with COVID-19 or are experiencing a reduction in work hours due to office closure.

The Labor and Workforce Development Agency has provided a Benefits for Workers Impacted by COVID-19 chart for reference.

Employees and Returning to work

What do I do now if I laid-off or terminated my employees?

Employees were paid final pay at the time of lay-off or termination will need to be provided all new hire documentation. Any forfeited paid sick leave should be reinstated in accordance with paid sick leave laws. In addition, employers should take the time now to develop or update polices and job descriptions to provide these to employees at the time of hire or rehire. CDA Practice Support offers a checklist that contains all new hire documentation requirements.

If I terminated or laid off all of my employees, must I rehire all of them back?

Once you’ve evaluated your staffing options, it’s important to evaluate and document the business reasons for rehiring some employees over others in order to avoid risk of discrimination. If your choice not to rehire is based on performance reasoning, it’s a best practice to have ongoing documentation of the performance issues and attempts to counsel and correct prior to the actions taken due to the recent crisis.

If I ask an employee to return to work and they say “no I’m scared and want to stay on unemployment for now” how do I handle that?

It gets a little more complicated with the offer of a return to employment and an employee who is reluctant or unwilling to return. The best course of action is to have a discussion to better understand the employee’s concerns. This will determine if an employee has legitimate fears that you can discuss and how you will protect the employee (as we know, employers have an obligation to provide a safe workplace).

Consider if the reasoning falls under any legal obligations under paid sick leave laws, other leave laws or disability reasonable accommodation. The employee may state that the risk of providing care in the current environment is too high and exposure due to an underlying medical condition or proximity to an at-risk family member could lead to serious consequences.

If you have offered an employee work, and they refuse because they would prefer to remain on unemployment, it is possible the claim for unemployment will be denied. In general, if an employee is able and available for work, they may be ineligible for unemployment benefits. The refusal of work could lead the employer to consider the refusal a voluntary resignation, I would be very clear with the employee about the implications of refusing work.

Employees and childcare during school closures

In California, employees at practices with 25 or more employees may be provided up to 40 hours of leave per year for specific school-related emergencies such as the closure of a child's school or day care by civil authorities (Labor Code section 230.8).

Whether that leave is paid or unpaid depends on the employer’s paid leave, vacation or other paid time-off policies.

Employers may require employees use their vacation or paid time-off benefits before they can take unpaid leave but cannot mandate that employees use paid sick leave. For example, CDA’s Sample Employee Manual template policy stipulates employees are required to exhaust vacation or PTO prior to taking any unpaid time.

A parent or guardian may choose to use any available paid sick leave to be with their child as preventive care.

The law does not require employers to provide unpaid personal leave. An employer may decide whether to provide unpaid personal leave, if there are any eligibility requirements for unpaid leave, the amount of time available, which benefits are continued during leave and the employee’s reinstatement rights. Employers should document the requirements or restrictions in their employee policies. Policies should be applied fairly and evenly to all employees who are covered by the benefit.

As a best practice, in order not to extend unexpected leave indefinitely, employers should outline the details of the personal leave agreement in writing, such as anticipated dates of leave, the reevaluation of extending leave depending on the current situation, any health coverage premium payment agreements, and communication expectations.

Employees experiencing missed work because of school closures may also be able to file an unemployment claim or request time under FFCRA.