Returning Employees To Work Following Unemployment

With the enactment of the CARES Act, employees who are not working due to the pandemic are entitled to receive their normal state-sponsored unemployment amounts plus an additional $600 benefit payment over and above the regular unemployment payment. This benefit is courtesy of the federal government program and continues through July 31, 2020. For some employees, particularly low wage earners, this has created a disincentive to return to work. This may create a problem for employers who are anxious to get their workplace up and running again. While the solution will vary depending on your workplace and individual employee circumstances, you can take steps now to put yourself in the best position to respond to such situations. Below are our recommendations to help minimize your return-to-work headaches.

However, to remain eligible for unemployment benefits in all but a few circumstances, individuals who have been placed on a temporary layoff related to the COVID-19 pandemic must return to work if called back. And since most state unemployment agencies require or request that you notify them when you call an employee receiving unemployment back to work, the agency will likely deny ongoing benefits unless the employee can demonstrate good cause for refusing the offer.

“Good Cause” And High-Risk Employees

The determination as to what constitutes good cause for the job refusal, however, will be viewed in light of the COVID-19 pandemic and will be subject to agency review. The U.S. Department of Labor and many states have emphasized that an unreasonable fear over the risk of contracting the virus in the workplace is not enough to constitute good cause, and state agencies will likely deny unemployment claims if this is the only reason offered.

Several states have already adopted rules outlining when an employee’s refusal to return to work may rise to the level of good cause, but Georgia is not one of them. In those states that have addressed the issue, these rules generally protect unemployment benefits for “high risk” or “vulnerable” employees, such as workers over 65 or with underlying medical conditions.

For example, Texas Governor Abbott has directed the Texas Workforce Commission to continue providing benefits even when the employee refuses an offer of suitable employment where (1) the employee is 65 or older or at higher risk for getting very sick from COVID-19; (2) the employee has a household member at high risk; (3) the employee or a household member has been diagnosed with COVID-19 (and not recovered); (4) the employee is under quarantine due to close contact or exposure to COVID-19; or (5) the employee has child care responsibilities and the school or daycare is closed (and employee has no available alternatives).

In Georgia, Governor Kemp has directed that individuals over 65 and those with preexisting medical issues should continue to shelter in place at least into mid-June. Thus it is very possible that the Georgia Department of Labor could decide that these individuals may continue to draw unemployment benefits even if they turn down an offer to return to work on the basis that it is unsafe. It is more practical for you to provide vulnerable workers with a choice of alternative work assignments, telework, the ability to use accrued leave, or unemployment if alternative work is not feasible.

How To Minimize Unemployment Concerns

Given the complicated issues created by the COVID-19 pandemic, you should be careful to consider the best approach for your workplace and employees. A thoughtful and transparent return-to-work process will help ensure employee safety and boost morale. Here are a number of steps you should take to ensure a smooth return-to-work for your organization.

• In all cases, the first step is to develop a plan of action to reopen the workplace that provides a safe work environment for the returning employees. The plan should be consistent with guidelines for return to work developed by the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control (CDC). OSHA requires employers to provide a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The plan should include an assessment of risk based upon employee exposure levels to COVID-19 in the workplace, which will vary based upon the workplace and job. For example, a risk assessment will be different for an employee returning to an office setting (low risk) versus the risk to a worker on an assembly line (high risk). The risk assessment should also consider federal, state, and local laws to address high-risk or vulnerable employees.
• Create a written memo to your employees about the return-to-work that outlines all the steps you are taking to comply with the recommended safety protocols, including policies to address high-risk and vulnerable employees, and disseminate it to all your employees.
• You should carefully assess the guidelines that apply in your state to your operation before making any decisions regarding an employee’s refusal to return to work.
• Continue to permit alternative work, including telework or work at an alternative location where feasible, and providing partial employment and work share opportunities.
• Clearly communicate the details of any return-to-work offer in writing (start date, hours to be worked, wages, job duties and location).
• If a return-to-work offer is rejected, develop a plan to address for-cause job refusals, including consideration of high-risk and vulnerable employees.
• If required, report any refusal to return to work to your state unemployment agency.
• Be sure to put in writing and document an individual’s refusal of an offer to return to work. This is particularly important if you have taken out loans under the Paycheck Protection Program. The Treasury Department takes the position that an employer’s loan forgiveness amount will not be reduced if the employer’s written offer to rehire is refused.
• If an employee expresses concern about returning to work, keep the lines of communication open and try to determine and address any concerns, if possible. If the employee suffers from a disability, the Americans with Disabilities Act requires you to try to accommodate the employee. If applicable, engage in the interactive process to determine whether a reasonable accommodation can be made before requiring the employee to return to work.
• Consider implementing a short-time compensation (STC) program, often called a shared work or workshare program, which allows employers to retain employees on a reduced schedule, while unemployment benefits make up some of the difference in income.

What Else Should Employers Do?

As you begin the process of reopening, you should familiarize yourself with what the state and federal guidelines for opening safely and keeping both your employees and your customers/clients safe. And remember, this is unchartered territory for all of us and particularly scary for those employees that fall into the medically vulnerable group. Work towards a compromise solution.