Question:
We didn’t expect the pushback we got from two of our furloughed employees when we called them back to work, particularly as we allow employees to work from home part of the workweek if their work can be accomplished remotely. One ignored two “return to work” emails but responded to a “work starts Monday” text with “thanks, but no thanks.” The other emailed he needed a raise if we wanted him back. We called him and said, “that’s not in the cards, we’re barely squeaking by.” He said he made more money on unemployment than working, so there was no real percentage in returning to work. What do we do with this?
Answer:
A condition for receiving unemployment requires being ready and able to work. Employees who lose their jobs or have their hours reduced through no fault of their own receive unemployment benefits as a temporary replacement for work pay. Employees who refuse an employer’s offer to return to work, either by resigning or asking for a leave of absence, risk losing unemployment benefits unless they have a legitimate safety or other legally protected reason for not returning to work. While you don’t need to go out of your way to inform the unemployment office this has happened, if you’re asked about the situation by the state or given Unemployment Insurance (UI) claims to fill out, you need to accurately report the situation.
The Department of Labor has issued guidance that “quitting work without good cause to obtain additional benefits may be considered fraud”, making employees who do so ineligible for benefits now and possibly indefinitely. Employees who intentionally remain on unemployment when they could take viable work may also be asked to repay any fraudulent income received and may face a criminal investigation.
Before you assume your two employees lack legally protected reasons, ask each for more information. Text the first and ask for his reasons if he doesn’t intend to return on Monday. Email the second that you want him to return to work at his former rate of pay and ask him to provide his reasons in writing if he chooses not to return.
Employees unable to return to work because they’re care-taking sick family members or can’t arrange childcare and their children’s schools or child care facilities remain closed may have valid reasons. They may qualify for support from the Families First Coronavirus Response Act (FFCRA). Employees can’t retaliate against employees who opt to receive these benefits and may elect to provide them a furlough extension or leave of absence. If this is true for either employee, work with them to agree to a return date, provide the date to them in written form and ask that they sign and return the document.
Employees who quit or resign due to legitimate workplace safety concerns may be able to collect UI. The Occupational Safety and Health Administration provides employees the right to refuse work would expose them to a hazardous condition that might result in a “real threat” of death or serious injury. A general fear of COVID exposure doesn’t give employees a sufficient reason for avoiding work.
What arrangements have or can you make to enable your employees to accomplish their work from home? If you and your employees face a state or local order asking employees to work from home as much possible, employees who can’t work from home because they lack necessary equipment or consistent WIFI may have a reason you need to consider.
Before an employee can exercise the right to a good faith refusal, the employee must present the employer with legitimate concerns about the hazardous condition and seek a correction. The National Labor Relations Act prohibits employers from retaliating against employees for engaging in protected, concerted activities, such as when employees band together and refuse to work under unsafe conditions. Additionally, the Americans with Disabilities Act generally protects employees whose underlying medical conditions entitle them to reasonable accommodations, which might include an unpaid leave of absence.
Finally, if either of your employees can’t provide a legally protected reason, remind them in writing that accepting offered work is a condition of employment and by not returning to offered work they’ve submitted an at-will resignation.
© 2020, Lynne Curry
Lynne Curry is the author of “Beating the Workplace Bully” (AMACOM, 2016) and “Solutions” (both books are rated 4.8 out of 5 stars on Amazon.com). Send your questions to her at lynnewriter10@gmail.com or follow her on twitter @lynnecurry10.
