When the pandemic slammed the brakes on the U.S. economy in March, many companies placed workers on furlough, rather than laying them off. At the time, the prevailing belief was the workplace shutdown would be temporary and that furloughed workers would return to the job when the economy reopened.

As businesses begin to reopen, many are reassessing the furlough decisions they made in March, said Kerry Notestine, co-chair of employment firm Littler’s Business Restructuring Practice Group.

“Many employers are finding they will not bring back as many people as they thought they would,” he said. “Employers are restructuring for the long haul. Instead of keeping people on furlough forever, they’re making the hard decisions on layoffs.”

The tricky part, he said, is handling the perception among employees on furlough or leave that they are being discriminated against because they are on leave.

“Being on leave can be a protected status for other issues as well (primarily disability but also workers compensation), so taking adverse action because someone is on protected leave generally is not a legitimate criterion for laying someone off,” he said.

Deciding which employees to keep and which to lay off starts with compiling a list based on the type of job skills that are essential to the business’ continued operation.

From there, employers ranking employees for layoff purposes based on performance should rank those on leave/furlough just like everyone else, including those who have already returned to work, he said.

“Practically, that is a very difficult thing to do,” Notestine said. He recommends that clients come up with a “process that attempts to treat those on leave in a non-discriminatory way without giving them favorable treatment.”

Instead of simply laying people off who are on furlough/leave, Notestine recommends eliminating their position but keeping them on leave. Those employees could be provided options to leave the company, like a severance package with an extension of health benefits, in place of a layoff. But he recommends not actually terminating an employee until they return from leave.

The employer could let the employee know they could be considered for openings when they return. If there are no openings for which they are qualified, they could be laid off then.

“Even this could be considered treating them favorably, but I think it practically is a much safer way to go,” he said.

In deciding which employees to transition from furlough to layoffs, there are a number of discrimination issues to address that are complicated by the coronavirus pandemic.

The U.S. Equal Employment Opportunity Commission (EEOC) recently updated its guidelines on which employees may be offered additional protections.

Employers should not lay off older employees in order to protect them from contracting coronavirus—even though they are more susceptible to health issues if infected, the EEOC said.

“The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older,” the EEOC said in updated guidance released June 11. “The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on him or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.”

Similarly, an employee with young children who cannot obtain childcare is considered a “COVID-related event,” Notestine said, which tends to disproportionately affect female employees.

The EEOC notes that such a move could trigger a gender discrimination issue.

“For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children,” the EEOC noted in its updated guidance.

Point person for return-to-work

Companies would be wise to have a point person to handle return-to-work issues; among them, handling requests for coronavirus-related workplace accommodations.

If there is more than one person in an organization handling workplace accommodation issues, the EEOC recommends splitting their responsibilities so they can focus on specific requests and make it clear which point person is handling which type of request.

“An employer also may send a general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. The employer should specify if the contacts differ depending on the reason for the request–for example, if the office or person to contact is different for employees with disabilities or pregnant workers than for employees whose request is based on age or child-care responsibilities,” the EEOC said in its updated guidance.

The EEOC noted that “employers should ensure that whoever receives inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply, for instance, with respect to accommodations due to a medical condition, a religious belief, or pregnancy.”