Help -My Employee Won’t Come Back to Work!

You may have seen news stories recently regarding workers who are currently receiving unemployment benefits refusing to return to work and the effect that could have on their unemployment eligibility. In what may be a surprise, a recent review of unemployment claims in one state showed that workers refusing to work were winning those claims 84 percent of the time. The employees who are arguing that they should not have to return to work are either over age 65 with underlying medical conditions, such as heart disease or immunocompromised, caring for someone at increased risk of contracting the virus, or are caring for a child out of school. These are the people protected under the federal First Families Coronavirus Response Act (FFCRA) and many state orders.

There are a couple of issues here for employers to consider when making decisions about re-employment. First, make certain that the employee refusing to come back to work is not protected under other current laws like the (FFCRA), Family and Medical Leave Act (FMLA), or the Americans with Disabilities Act (ADA). Under the FFCRA, covered employers must allow time off to take care of a child for whom no child care is available, and under the FMLA, an employee can take time off to their illness or the illness of a parent, spouse, or child. Under the ADA, an employee may be entitled to an accommodation of either working from home or taking more time off to contend with a serious health condition of their own.

If the employee is not protected and the need to hire is urgent, discharging the employee may be the best business decision. The fact that it is the best decision for the employer does not mean that unemployment will not be available for that discharged worker. In many states, the sole question is whether the employee is at fault. For example, someone who must stay at home to protect a family member’s health may not be seen to be at fault for the termination, even when the termination was legally justifiable.

Are you an Employers Council member trying to determine whether to contest a claim for unemployment for someone refusing to return to work? Speak to an attorney on our staff. The attorneys defend employers in unemployment hearings and have seen an uptick in this work. They are well aware of the outcomes in these cases. They discuss your claim and its likelihood of success so that you can decide how to proceed.