The DOL issued new guidance to the states for implementation of Pandemic Unemployment Assistance (PUA) under the CARES Act. In doing so, the DOL answered a number of questions about who is eligible for benefits, how claims can be filed, how are benefits are calculated, and, importantly, what happens when you call workers back to return to work. But, be careful. It’s not as simple as it seems.
Among other things, the DOL discussed what happens when an employee refuses to return to work when offered a job or when the stay at home orders end. Simply put, furloughed or laid off employees cannot continue receiving their unemployment benefits if they refuse a job offer or refuse to return to work after the lifting of the stay home orders. Moreover, employees will not be entitled to unemployment if they refuse to come to work out of a mere “general concern” about contracting the Covid19 virus.
The new DOL Guidance on these issues can be found here –> https://wdr.doleta.gov/directives/attach/UIPL/UIPL_16-20_Attachment_1.pdf
That said, the employer’s legal obligations regarding return of employees are more complicated than those simple statements from the DOL’s new Guidance may suggest. There are many reasons why an employee may legitimately refuse to return to work even when a job has been offered to him or her.
For example, an employee eligible for paid leave under the FFCRA obviously cannot be discharged for requesting it. An employee may be entitled to paid leave under the FFCRA if he or she requests it for a qualifying reason which includes the following: 1) the employee is subject to a government quarantine or isolation order; 2) the employee has been advised to self-quarantine; 3) the employee is experiencing symptoms; 4) the employee is caring for an individual described in (1) or (2) above; 5) the employee is caring for a child whose school or daycare center has been closed; or 6) the employee is experiencing any other substantially similar condition.
In addition, the DOL, OSHA, the CDC and the EEOC have all issued guidelines on how to manage the workplace in the new Covid19 era. Failure to meet these guidelines may potentially form the basis for an employee’s refusal to return to work depending on the circumstances. If, for example, the employee notes that the employer has failed to take reasonable precautions to keep employees safe, perhaps by referencing CDC or OSHA Guidelines, the employee’s refusal to come to work under that circumstance could be considered a reason attributable to the employer and not a resignation by the employee. In addition, an employer who fails to provide a reasonable accommodation for an employee’s disability, which may present more of a critical issue during this time of pandemic, may well be construed as having terminated the employee’s employment. Of course, failure to reasonably accommodate an employee with a disability may create other liability as well.
OHSHA Guidance can be found here–> https://www.osha.gov/Publications/OSHA3990.pdf
CDC Guidance can be found here–> https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html
EEOC Guidance can be found here–> https://www.eeoc.gov/coronavirus/
The Presidential Commission has also issued a suggested 3-Phase process for reopening the workplace. Phase 1 involves encouraging employees to telework, returning people to the workplace in phases, closing common areas, minimizing non-essential travel, and offering special accommodations to persons in the “vulnerable population” even if they do not have specific disabilities. Phase 2 involves the same the same elements, except for the suggestion against travel. Phase 3 would involve simple unrestricted staffing of worksites, but with special considerations for vulnerable populations.
The Presidential Commission Guidelines are here–> https://www.whitehouse.gov/openingamerica/
While the Commission guidelines are not law, they do provide a standard of care that should be considered when returning employees to work. In any event, any return to work at any Phase level will always need to comply with OSHA guidelines and other existing laws against discrimination, laws providing for paid and unpaid leave, and laws requiring accommodations for employees with disabilities.
In the end, make these decisions thoughtfully after considering all the facts. Of course, seek the advice of counsel to develop a strong policy that complies with the employer’s legal obligations and be sure to keep advised as these laws continue to develop.