Beyond the Curve: Employment Issues Facing Hotels as They Reopen

    By Miranda R. Watkins, Attorney at Law, Fisher Phillips LLP

    During recent months, our country has been acutely focused on flattening the COVID-19 curve. As we look toward life after the worst of the COVID-19 pandemic, business recovery will be paramount and on everyone’s mind. In fact, Governor Newsom recently announced his four-step plan for gradually reopening of California businesses. Businesses with a higher risk for the spread of COVID-19, such as beauty salons, entertainment venues or sporting events, and likely hospitality businesses, would be allowed to reopen with adaptations to adhere to social distancing during step three. Hotels will now need to turn their focus towards assessing business operations, recalling workers, and ensuring a safe workplace. With these next steps comes a brand-new set of labor and employment challenges for hotels looking to resume operations.

    Who Do I Bring Back and How?

    Hiring/Recalling Considerations
    Hiring or recalling furloughed or previously laid off workers, may seem easy. In reality, it presents multiple legal challenges.

    Discrimination and Negligence Concerns. Hotels must consider objective, non-discriminatory criteria for selecting those who will be brought back to work as failing to do so could give rise to discrimination claims. Hotels should also be mindful of potential negligence claims if employees are brought back too soon or into unsafe work conditions.

    Logistics. Beyond selecting workers to recall, hotels should consider the logistics of doing so. For example, will all identified workers be brought back at full time, or will these workers ramp up from 20 hours to 40 hours per week over a certain time period?

    Advance Notice of Schedules. Hotels operating in San Francisco or Emeryville must comply with local predictive scheduling ordinances mandating that schedules be provided two weeks in advance with a good faith written estimate of an employee’s work schedule.

    Workers Refusing to Return. While many workers may be excited to be invited back to work, hotels should be prepared to respond to employees who refuse to come back due to continued COVID-19 concerns. While employees are only entitled to refuse to work if they believe they are in imminent danger, hotels may want to consider accommodating these fears as taking adverse actions in light of a worker’s expressed fear could give rise to a retaliation claim.

    Wage and Hour Concerns. Hiring/recalling workers can also give rise to potential wage-and-hour claims. Hotels should provide notice to employees regarding any changes in pay, including a new wage notice pursuant to Labor Code section 2810.5. Similarly, hotels should communicate updates concerning bonus programs that have been suspended, amended, or resumed to employees. If bonus payments are made, hotels need to be mindful of their effect on a worker’s regular rate and whether the bonus must be accounted in overtime calculations. Hiring/recalling a worker may necessitate a new or amended pay plan for employees whose rate of pay may have changed. Pay equity issues may arise when rehiring workers as well, so special attention should be given to pay adjustments for workers performing similar jobs. Further, hotels should be mindful of the effect that adjusting exempt salaries will have on their exempt status and consider when and how to return exempt workers who were reclassified to non-exempt to their prior exempt status.

    SBA Loan Concerns. Finally, hotels will need to analyze the impact of recalling workers using loan proceeds obtained through the federal government or other government benefits.

    Ensuring a Safe Place: Workplace Safety and Operational Considerations

    Hotels must take a multi-faceted approach to safety that takes into consideration both employee and guest safety. Below are some of the key safety measures hotels should consider:

    • Taking employee temperatures upon arrival to work.
    • Physical distancing between guests and/or employees.
    • Installing touchless hand sanitizer dispensers at key guest and employee entrances and high contact areas.
    • Front and back of house signage containing health and hygiene reminders.
    • Instruction and training to employees about correct hygiene and frequent handwashing with soap.
    • Training on appropriate PPE, such as masks and gloves, for employees based on their role and responsibilities in adherence to California and local guidelines.
    • Training for all employees on COVID-19 safety and sanitation protocols with more comprehensive training for teams with more frequent guest contact, such as housekeeping, food and beverage, and hotel operations and security.
    • Increase frequency of cleaning and sanitizing in all public spaces with an emphasis on surfaces with frequent contact, such as check-in counters, bell desks, elevators, door handles, room keys and locks, ATMs, stair handrails, dining surfaces and seating areas, and public bathrooms.
    • Wash all bedding and laundry in accordance with CDC guidelines.
    • Use EPA-approved disinfectants to clean guest rooms with a focus toward high-touch items, such as remote controls, toilet seats and handles, door and furniture handles, water faucet handles, nightstands, telephones, and alarm clocks.

    Don’t Forget Your Families First Coronavirus Response Act (FFCRA) Obligations Paid Sick Leave (EPSL) and Emergency FMLA (EFMLA)

    Hotels hiring/recalling workers must be mindful of eligibility requirements and obligations to provide workers with EPSL and EFMLA as the FFCRA remains in effect through December 31, 2020. This obligation to provide emergency leave does not end simply because the curve has flattened, and businesses have re-opened. Further, hotels must be mindful of how the EPSL and EFMLA interact with the California Family Rights Act as well as California and local paid sick leave laws.

    Post-COVID-19 HR Compliance Considerations

    With a new post-COVID-19 world comes new compliance considerations, including an updated handbook with policies addressing the FFCRA as well as changes to timekeeping, travel policies, attendance, bonuses, furlough, reinstatement of pay, and accommodations, as well as training on any new or modified policies. Hotels should also ensure they display the required FFCRA posters

    Additional Resources

    The issues above are by no means an exhaustive list. Please contact Fisher Phillips for more information about return-to-work resources, including a detailed back-to-business checklist.