Now that businesses are beginning to reopen across America, small-business clients are facing yet another challenge in the wake of the COVID-19 outbreak: what to do about employees who refuse to return to work.
Whether for economic or health reasons, many Americans have expressed an unwillingness to return to the workplace for the time being. Some employees might find that their income has actually increased given the additional $600 in weekly federal unemployment benefits—or might be attracted to the idea of collecting unemployment benefits for 39 extra weeks. Others may genuinely fear for their health.
Small-business clients should be aware that not all situations are created equally—and the employer does have the right to contest the employee’s refusal to return in certain circumstances. However, the employer should always proceed with caution in these situations, carefully evaluating the Department of Labor guidance before taking any concrete action.
CARES Act Unemployment Relief
The CARES Act created a new form of unemployment assistance for employees unable to work for a COVID-19-related reason. This federal pandemic unemployment compensation provides an additional $600 weekly federal unemployment benefit above and beyond the state unemployment benefits received by the employee. Pandemic unemployment assistance, or PUA, provides an additional 39 weeks of federal benefits for those who have exhausted their right to benefits or who otherwise would not qualify for unemployment.
Additional PUA benefits are generally available if the employee’s place of work has closed as a direct result of COVID-19 or if the employee has had to quit as a direct result of COVID-19. Employees who must remain home to care for children whose normal childcare provider or school is closed due to COVID-19 (or to care for someone who has contracted the virus) also qualify.
Of course, if the employee or a member of the employee’s household has contracted COVID-19, the additional PUA benefits are available.
DOL Guidance on Employees Who Refuse to Return to Work
Recently released DOL guidance clarifies that employees are not entitled to refuse to return to work simply because they wish to continue collecting enhanced federal unemployment benefits. In these circumstances, the DOL guidance notes that the employee is not unemployed because of a COVID-19-related reason specified in the CARES Act.
The same is true for employees who refuse to return to work because of some general, subjective fear of contracting the coronavirus.
However, if the employee contracted COVID-19 in the past and has recovered, that employee may have an objective reason to avoid returning to work. If the virus somehow compromised the employee’s health so that the employee would be unable to perform at work, the employee may remain eligible for enhanced unemployment assistance.
Similarly, if the employee has a compromised immune system or is in a high-risk group (including the elderly or those with underlying health conditions), the employee may have a legitimate reason for refusing to return to work. If a healthcare provider has advised that employee to self-isolate or quarantine because of those risk factors, the employee remains eligible for PUA assuming all other eligibility criteria are satisfied.
Small-Business Clients: Action Steps for Employees Who Refuse to Return
Small-business owners should proceed with caution when an employee refuses to return to work. First, the employer should make the return-to-work offer in writing (whether the return-to-work requires teleworking or returning to the workplace). Likewise, the employer should ask any employee who refuses to return to explain their circumstances and rationale in writing.
The employer is entitled to contest an employee’s continued eligibility for unemployment benefits if the employee refuses to return to work for a non-permitted reason. Before doing so, however, the employer should carefully review the employee’s statement and compare the rationale to the list of permitted reasons contained in the CARES Act itself (as discussed above).
Employers should also be aware of state-specific rules that must be followed to help ensure employees are returning to a safe workplace. If the employer is not following state-mandated guidelines, employees may have the right to refuse to work and continue collecting unemployment benefits.
Many employers may be tempted to explain the precautions they are taking to protect the safety of returning employees. While the client should explain what precautions will be implemented, it is important to speak with counsel before doing so—in order to avoid any allegations that the employer pressured employees or violated employment laws.