Labor & Employment Developments Blog

As Ohio businesses prepare to re-open, a question that has frequently come up is what to do about employees who refuse to return to work. We are referring to employees who are not sick or under any quarantine orders but do not want to return to work. Their reluctance is usually based on (1) fear of being exposed to COVID-19, (2) a lack of childcare because schools and daycares are closed or social distancing with nannies or other family members, or (3) making more money by staying home and collecting unemployment than they would by returning to work. In such circumstances, Ohio employees are not necessarily entitled to continue receiving unemployment benefits. In fact, the state of Ohio is now asking employers to report employees who refuse to report to work when their jobs are available. The form to fill out is on the Ohio Department of Jobs and Family Services website here. The ODJFS promises to “review the necessary files and records in light of the information you have provided to determine the most appropriate action.” The state’s request for employers to make these reports has been publicized in the media and can be shared with employees.

There are other issues for employers to consider in this scenario apart from unemployment benefits and employers should exercise caution. In many instances, the situation can be resolved by discussing the underlying concerns with the employee and providing information about steps taken by the employer to provide a safe workplace and to comply with CDC guidelines and the directives of the Ohio Department of Health. However, there are a few additional issues to keep in mind.

Although asymptomatic employees, and even possibly those with COVID-19, are not necessarily protected by the Americans with Disabilities Act (ADA), they may have underlying conditions that are covered and place them at higher risk. Such conditions may require accommodation by employers. Similarly, stress or anxiety disorders may prevent employees from returning to work and may also require accommodation. Employers should discuss employees’ refusals to return to work with them before acting and document the discussions.

Employers should also bear in mind that several laws that may have been utilized by employees since the pandemic began have protections against retaliation, including for example, the Family Medical Leave Act (FMLA), the Family First Corona Response Act (FFCRA) and similar state laws. Additionally, employee complaints and reports are protected by laws such as OSHA, the NLRA and state whistleblower laws. Moreover, employees with childcare issues may be entitled to protected, paid leave under the FFCRA’s expansion of the FMLA. As a result, employers who intend to end the employment of employees who refuse to return to work or treat them as having abandoned employment should make sure that they have ample documentation of the offer to return to work, the employee’s refusal to do so, and the employee’s bases for refusing.

Employers who have received a potentially forgivable loan under the Paycheck Protection Program (PPP) need to maintain employment numbers or rehire laid-off or furloughed employees in order to maximize loan forgiveness. This has led to a growing concern from borrowers that certain employees who are fearful of coming back to work, lack childcare, or making more from unemployment benefits may decline an offer of employment and elect to remain unemployed, which could affect loan forgiveness under the PPP. In light of this concern, the U.S. Small Business Administration (SBA) issued guidance on May 3, 2020, that the SBA and Treasury intend to issue an interim final rule excluding laid-off employees whom the borrower offered to rehire for the same salary/wages and same number of hours from the PPP loan forgiveness reduction calculation. The interim final rule will specify that, to qualify for this exception, the borrower “must have made a good faith, written offer of rehire, and the employee’s rejection of that offer must be documented by the borrower.” This is a helpful and well-reasoned interpretation of the PPP that will ensure that employers who do the right thing and offer to rehire employees are not penalized because the employee declines such offer. 

Best Practices:

• Provide written notice to employees (at the most recent address on record) of the offer to return to work, including the terms of employment (which may have changed) and retain copies of all correspondence;
• Deliver return notices/offers via a verifiable means, e.g. individual email or certified mail as opposed to posting online or robo-calls;
• Discuss with employees their refusal to return and document all discussions, including specifically the employees' reasons for refusing;
• Consider whether employees have any statutory protections prior to making any final decisions regarding on-going employment.

Please contact any member of our Labor & Employment Group, our PPP finance team, or the KMK Law Coronavirus (COVID-19) Response Team for further assistance.