What is a Layoff?
A layoff is a temporary or permanent suspension of an employee’s employment. It is generally a termination of employment.
What is a Furlough?
A furlough is a temporary, unpaid leave of absence, with an expectation that an employee will return to his or her job at a specific time. A furlough could also include reduced hours of work or work weeks. Ultimately, a furloughed employee remains an employee.
Can I Choose not to Rehire an Employee who I had Originally Furloughed?
Employers are not required to hire back furloughed employees. Employers should review written communication such as emails and furlough letters to ensure they did not unintentionally confirm or guarantee an employee’s right to return to work.
Mitigating Potential Employment Discrimination Risks and Rehiring Furloughed Employee’s Post Covid-19:
Upon the anticipated reopening of business’s many employers will undertake the consideration of which furloughed employees they are going to rehire. Employer’s should be cautious in their rehiring practices in order to mitigate employment discrimination risks. For example, employers should not rehire based on whether an employee is seen as a high risk individual for contracting COVID-19. Generally, rehiring based on an employee’s seniority within the business offers the most protection against discrimination claims. Another route that employers could take is allowing furloughed employees to return on a first come first serve basis. This would eliminate any perception of discrimination and allow those employees who are comfortable to return to work. Overall, employers should be mindful in their rehiring process to ensure they are not bias based on age, pre-existing conditions, or other COVID-19 related risks.