What to Do When Unemployed Workers Refuse to Come Back

However, if the employee contracted COVID-19 in the past and has recovered, that employee may have an objective reason to avoid returning to work. If the virus somehow compromised the employee's health so that the employee would be unable to perform at work, the employee may remain eligible for enhanced unemployment assistance.

Similarly, if the employee has a compromised immune system or is in a high-risk group (including the elderly or those with underlying health conditions), the employee may have a legitimate reason for refusing to return to work. If a healthcare provider has advised that employee to self-isolate or quarantine because of those risk factors, the employee remains eligible for PUA assuming all other eligibility criteria are satisfied.

Small-Business Clients: Action Steps for Employees Who Refuse to Return

Small-business owners should proceed with caution when an employee refuses to return to work. First, the employer should make the return-to-work offer in writing (whether the return-to-work requires teleworking or returning to the workplace). Likewise, the employer should ask any employee who refuses to return to explain their circumstances and rationale in writing.

The employer is entitled to contest an employee's continued eligibility for unemployment benefits if the employee refuses to return to work for a non-permitted reason. Before doing so, however, the employer should carefully review the employee's statement and compare the rationale to the list of permitted reasons contained in the CARES Act itself (as discussed above).

Employers should also be aware of state-specific rules that must be followed to help ensure employees are returning to a safe workplace. If the employer is not following state-mandated guidelines, employees may have the right to refuse to work and continue collecting unemployment benefits.

Conclusion

Many employers may be tempted to explain the precautions they are taking to protect the safety of returning employees. While the client should explain what precautions will be implemented, it is important to speak with counsel before doing so—in order to avoid any allegations that the employer pressured employees or violated employment laws.

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