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  • What Happens When an Employee Refuses to Return

    Employers Group | 06/04/2020 | Blog, COVID-19, Featured

    An Update on FFCRA Leaves and Unemployment Benefits

    The moment many employers have been anxiously anticipating for over two months has finally arrived.  The calls, emails and texts have been going out to furloughed, laid-off, reduced-scheduled and remote/sheltered-at-home employees excitedly letting them know that the workplace is ready to reopen – so come on back.  Business as usual is finally on the horizon!

    What could possibly go wrong?  Well, there are many bells that need to be unrung, and we all know how easy that is to do!

    FFCRA-created Paid Sick Leave and expanded FMLA benefits, as well as Unemployment benefits sometimes exceeding an employee’s regular wages, have all provided financial and home life security and somewhat of a general comfort zone for much of the workforce.  Now, difficult decisions are being made by both employers and employees as businesses are permitted to reopen and employees are being asked to separate themselves from these benefits and return to a potentially risky workplace in a potentially risky economic environment.

    Continued Utilization of FFCRA Leaves

    Employers should prepare themselves for some difficult questions from a concerned workforce regarding the reopening process and what it means to them as an individual – not just as an employee.  For those keeping score at home, the DOL is now up to 93 FAQs addressing FFCRA.  You can see the full, updated DOL FAQs in all their glory, here:  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

    The most recent additions address some real-world scenarios that we can expect to come up soon, and are summarized below:

    Can an employee continue to take paid sick leave or expanded family and medical leave to care for children during the summer when the school is now closed for the summer vacation and not specifically for a COVID-19 related reason?

    The straight answer is No, because summer vacation is not a COVID-19 related reason.  However, the nuance here is that if the summer program, (a camp or other programs in which the employee’s child is enrolled) is closed or unavailable for a COVID-19 related reason, they would probably still be eligible for the leave.

    How about an employee with children at home that has been working remotely since the beginning of the Stay at Home Order with no issues or concerns, but now claims they need to take paid sick leave or expanded FMLA because their child’s school is closed because of a COVID-19 related reason?

    Yes – they would very probably be eligible for the leave. The fact that the employee has been teleworking despite having children at home does not mean that they cannot now take leave to care for the children whose schools are closed for a COVID-19 related reason.  You can certainly  ask the employee to explain and note any changed circumstances that would explain why they are unable to work now; however, you should exercise caution in doing so, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act.

    As we begin returning our employees to the workplace, what if they claim tiredness or other symptoms of COVID-19, and ask to take leave to seek a medical diagnosis?  Can documentation of the effort to obtain the diagnosis be required? 

    Yes – at least in that, if the leave will be under the FFCRA, you may require the employee to identify their symptoms and a date for a test or doctor’s appointment. You may not, however, require the employee to provide further documentation or similar certification that they sought a diagnosis or treatment from a health care provider in order for the employee to use paid sick leave for COVID-19 related symptoms.   Also, remember that if an employee were to take unpaid leave under the FMLA, the FMLA rules’s would apply and they are different.  Further, if the employee is concurrently taking another type of paid leave, any documentation requirements relevant to that leave still apply.

    Unemployment Benefits Eligibility Going Forward

    The Unemployment Insurance system was created in 1935 to serve as a form of social insurance in which taxes collected from employers are paid into the system on behalf of working people to provide them with income support if they lose their jobs through no fault of their own. Anything even remotely related to COVID-19 is automatically classified as “no fault,” and the individual is eligible for their regular weekly benefit amount (as determined by the state in which they were working) and, temporarily, an additional $600 per week kicked in by the federal government. This has provided a very important safety net for many employees and their families, but has now created a situation in which some employees are not quite as motivated to return to work as they ordinarily might be. For example, a furloughed employee in California, eligible for the maximum weekly benefit amount and the $600 federal payment, is receiving the equivalent of $26.25 per hour. An employee in Massachusetts could theoretically receive as much as $45.85 per hour under certain circumstances.

    This, logically, begs the following questions:

    Can one of my employees refuse to come back to work just because they prefer to collect the UI benefit?  Would they still be able to receive the benefits?

    The simple answer to this is No.  If the refusal to return is strictly because (and only because) they prefer to collect UI benefits, then they are no longer out of work “through no fault of their own.”   This also presupposes that there is no COVID-19 related issue with the employee or their family that may qualify them for UI or other leaves under the FFCRA.  End of story, right?  Not so fast…

    Can one of my employees refuse to come back to work because they are “afraid” of exposure to COVID-19 at the workplace and still be able to receive UI benefits?

    The less-simple answer to this is – Possibly.  Employers are advised to go way back to the archives (seems like a lifetime ago, but it was April 27, 2020) when the DOL issued Unemployment Insurance Program Letter No. 16-20.  In this, the DOL clearly affirmed that, in addition to not being eligible for UI because of no longer being unemployed for no fault of their own, the “subjective fear” of employees who refuse to return to work due to a general fear of exposure to the coronavirus does not make the employee eligible under the federal PUA program.

    Separately though, the DOL has left the door open for continued UI benefits in the event of a refusal to return to work when “specific, credible health concerns could require an individual to quit his or her job…”  The examples cited are:

    • If diagnosed with COVID-19 by a qualified medical professional, and although the individual no longer has COVID-19, the illness caused health complications that render the individual objectively unable to perform his or her essential job functions, with or without a reasonable accommodation.
    • If the employee believes that the employer’s response to the possible spread of COVID-19 creates a serious safety hazard.
    • If the employee thinks the employer is not following OSHA standards.

     

    Are there any state-specific variations from the federal guidance on refusing to work and still collecting UI benefits?

    As is pretty much always the case – Yes.  Several states have provided additional clarification on the DOL’s concepts of “fear” and insufficient response to the safety concerns by the employer.  Not surprising, California leads the pack on this.  The CA EDD has amended its FAQs (found here:  https://www.edd.ca.gov/about_edd/coronavirus-2019/faqs.htm)  to assure claimants that they may be able to refuse work and still be eligible to collect their full UI weekly benefits under certain circumstances, including:

    • Underlying health conditions and concerns about exposure to the virus.
    • If a child’s school is shut down, and the child is not ill.
    • The employee had to quit because of childcare needs.
    • The employer has temporarily allowed for less than full-time hours due to a childcare situation which could result in partial UI eligibility.
    • If the work offered is not considered “suitable,” in light of factors such as the degree of risk involved to the individual’s health and safety.
    • If the business does not provide an essential service and is not in one of the industries reopening now under the state’s Resilience Roadmap for reopening. This is because the stay-at-home order is still in effect outside of essential or reopened industries.
    • If you are at greater personal risk due to higher risk factors as identified by the CDPH, even if the employer has complied with the state’s requirements for reopening, and any and all government safety regulations. However, if the employer is willing to allow remote/telework the employee may be considered ineligible.
    • If the wages, hours, or other working conditions for the work offered are “substantially less favorable” than those prevailing for similar work in the locality.

    Conclusion

    There are many factors that employers will be keeping top of mind throughout the reopening process.  The answers to many logical inquiries we can expect from concerned employees will not always be clear – as always, consider leave-related requests carefully and on a case-by-case basis.  It will be important (not necessarily easy, but definitely important) to follow the myriad of guidances coming from the federal, state and local governments and agencies.  The common denominator in all of this seems to be that it is critical to follow the CDC and state guidelines on safety and work diligently to make sure all procedures are carefully followed.