As non-essential Ohio businesses begin to reopen, some employees may not be eager to return. This could be due to lingering safety concerns about COVID-19 and/or because employees may be receiving an extra $600 a week in the form of unemployment benefits from the federal government. This $600 benefit is often in addition to whatever state unemployment benefits the employee receives, even if that results in the employee making more by staying at home than by returning to work.
So, what can you do when you ask employees to come back to work and they refuse? First, it is important to discuss with these employees their reasons for not wanting to return to work. Then, it is critical to document the details of this discussion. If COVID-19 safety concerns are the issue, determine whether reasonable accommodations (such as allowing the employees to work from home or providing them with personal protective equipment) can be made before the employees are required to return to work. If, instead, the concern is that the employees do not want to give up their unemployment benefits, this should be documented. Documentation of a refusal to return to work may also assist employers who received a Paycheck Protection Program loan when they seek loan forgiveness. Additionally, good documentation of a refusal to work may be useful if the employees apply for Emergency Paid Sick Leave under the Families First Coronavirus Response Act.
In dealing with employees who don’t want to return to work for economic reasons, an employer may want to consider offering increased pay in the form of “hazard pay” to employees to incentivize them to return. Alternatively, an employer may choose to report the employees to the Ohio Department of Job and Family Services (“ODJFS”) if they continue to try to collect unemployment.
Under Ohio law, individuals are prohibited from receiving unemployment benefits if they refuse to accept offers of suitable work, or quit work, without good cause. ODJFS even created a COVID-19 Fraud Page (found here: https://secure.jfs.ohio.gov/covid-19-fraud/) where employers can “report employees who quit or refuse work when it is available due to COVID-19.”[1] State officials have encouraged such reporting and ODJFS has stated that, “If you have employees who refuse to return to work or quit work, it’s important that you let ODJFS know so we can make accurate eligibility determinations.” Treasury Secretary Mnuchin has also stated that employers should “notify the local unemployment insurance agency because that person will no longer be eligible for unemployment.”[2]
In order to report fraud, the Ohio form requires detailed information about the employer and the employee. Following such a report, there is usually an administrative review process to determine if the former employees are still eligible for benefits. The process includes written statements from the employees and the employer. The determination is based on whether there is a “good cause” reason for the employees to refuse to return to work.
In the context of a workplace safety contention, ODJFS uses a “reasonable person standard,” meaning it determines if a reasonable person would feel safe returning to work. Thus, employers should ensure that they are complying with the most recent Ohio Health Department guidelines and governmental orders.
Employers are encouraged to consult with professionals to make sure that they are taking the proper steps to document and report a refusal to work and to comply with all safety guidelines and regulations.
[1] As of the time of the posting of this entry, the website page was in the process of being revised for policy reasons but directed employers to report eligibility issues by sending an email to: [email protected]
[2] Joseph Zeballos-Roig, Treasury Secretary Mnuchin said employees who turn down their old jobs can lose unemployment benefits under small business aid program, Business Insider, https://www.businessinsider.com/employees-returning-work-ppp-lose-unemployment-aid-cares-mnuchin-jobs-2020-5 (last visited May 19, 2020).
Contributing Attorneys:
David P. Pierce
Marc L. Fleischauer
Benjamin A. Mazer
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