Now that businesses are beginning to reopen across America, small-business clients are facing yet another challenge in the wake of the COVID-19 outbreak: what to do about employees who refuse to return to work.
Whether for economic or health reasons, many Americans have expressed an unwillingness to return to the workplace for the time being. Some employees might find that their income has actually increased given the additional $600 in weekly federal unemployment benefits—or might be attracted to the idea of collecting unemployment benefits for 39 extra weeks. Others may genuinely fear for their health.
Small-business clients should be aware that not all situations are created equally—and the employer does have the right to contest the employee's refusal to return in certain circumstances. However, the employer should always proceed with caution in these situations, carefully evaluating the Department of Labor guidance before taking any concrete action.
CARES Act Unemployment Relief
The CARES Act created a new form of unemployment assistance for employees unable to work for a COVID-19-related reason. This federal pandemic unemployment compensation provides an additional $600 weekly federal unemployment benefit above and beyond the state unemployment benefits received by the employee. Pandemic unemployment assistance, or PUA, provides an additional 39 weeks of federal benefits for those who have exhausted their right to benefits or who otherwise would not qualify for unemployment.
Additional PUA benefits are generally available if the employee's place of work has closed as a direct result of COVID-19 or if the employee has had to quit as a direct result of COVID-19. Employees who must remain home to care for children whose normal childcare provider or school is closed due to COVID-19 (or to care for someone who has contracted the virus) also qualify.
Of course, if the employee or a member of the employee's household has contracted COVID-19, the additional PUA benefits are available.
DOL Guidance on Employees Who Refuse to Return to Work
Recently released DOL guidance clarifies that employees are not entitled to refuse to return to work simply because they wish to continue collecting enhanced federal unemployment benefits. In these circumstances, the DOL guidance notes that the employee is not unemployed because of a COVID-19-related reason specified in the CARES Act.
The same is true for employees who refuse to return to work because of some general, subjective fear of contracting the coronavirus.
