How to Handle Employees Who Refuse to Return to Work After a Furlough?
Thankfully, businesses in California are slowly reopening. A number of questions have arisen to be addressed by HR Consultants as to what is expected for the returning employees. The following are some of the common questions posed with guidelines.
Obviously, few issues are involved if an employee readily returns to work after a temporary layoff for furlough. This Memo concerns employees who, for various reasons, do not want to return and insist on remaining on furlough for an indefinite period of time. In large part, this may be because they are enjoying the ample benefits of unemployment insurance.
Remember this guidance must be viewed with the background of various state laws. For example, in California’s recent Executive Order N-33-20. Gov. Newsom has ordered all employees of non-essential businesses to stay home until further notice. It is anyone’s guess the extent to which this will be enforced in the future. If you are performing HR Consulting, you know this may also be true in other states
A word to the wise: more and more non-essential businesses are opening up even though self-quarantine laws are still in effect. Most legal advisors opine that police officers will probably not enforce these rules. However, if you do reopen, it is absolutely necessary to implement serious hygiene and protective measures. This will hopefully lessen the blow if there is a lawsuit due to one of your employees becoming sick or dying because of the virus.
FAQ
If someone refuses to return to work from furlough due to making more money via UE what are the appropriate steps here? I know we can alert the EDD as to their refusal. Is it a quit?
Denial of Unemployment Benefits:
As a general rule before the onslaught of the Coronavirus, to receive unemployment benefits, the employee must be: a) totally or partially unemployed, b) unemployed through no fault of their own; c) physically able to work; d) available for work and e) ready and willing to accept work immediately if offered.
This has changed slightly because of the virus. For example, the California EDD states:
Qu: Are benefits available if my employer reduces my hours or shuts down operations due to the impacts of the coronavirus?
Ans: If your employer reduced your hours or shut down operations due to COVID-19, you are encouraged to file an Unemployment Insurance (UI) claim. UI provides partial wage replacement benefit payments to workers who lose their job or have their hours reduced, through no fault of their own. Workers who are temporarily unemployed due to COVID-19 and expected to return to work with their employer within a few weeks are not required to actively seek work each week. However, they must remain able, available, and ready to work during their unemployment for each week of benefits claimed and meet all other eligibility criteria.
This means that for the first few weeks/months, there would be no need to seek work because the employers were not making positions available. During that period, unemployment could be paid.
This would all change soon as there is a return-to-work offer. If the employee refuses to work, one could hardly claim they are making themselves available or seeking work. At that point, one could argue unemployment benefits cease.
But this assumes the company is considered an essential business and has the right to continue operating. For non-essential businesses, there is no right per se to remain open nor to allow employees to return to work. In that case, the employee need not prove he or she is available to work–because that position is technically unavailable.
Because California favors employees, it will probably allow the employee to continue receiving unemployment even with an offer to return to work–under the theory the offer is not legally valid because the company has not yet been given the right to reopen.
But what if a non-essential business decides to open up anyway? It would be a technical violation of the Executive Order. Positions would now be available from a practical standpoint. But not from a strictly legal standpoint. Again, because of the per se violation, the employee could argue there never was a valid return to work offer and so continue to receive unemployment benefits.
A finding the Employee Has Quit:
Bottom line: As long as the Executive Order is in effect, do not consider the employee to have quit (i.e. if an offer to return is made and there is a refusal).
The safer approach is do the following:
- Make at least two offers to return to work (see emails #1 and #2 below). If the employee refuses, state it is evidence the employee has decided not to come back to work. In other words, they have decided, not you, to terminate the relationship. An employee can do this voluntarily at any time.
- State if they do not return to work, their position may be filled by another person (see Email #2 below).
Email #1:
Dear Joe. This is an update as to our operations in light of the Coronavirus. For a limited number of positions, we are giving some of our employees the right to return to work. As to your previous position of ________, we are happy to report you can now return to that job effective ______________. Your hours and rate of pay will be: _________________.
So we can properly schedule, please indicate within 48 hours as to whether you wish to return to work under those conditions. Feel free to contact me for more details (Phone: ________; Email: ________).
Email #2:
Dear Joe. On _________ we emailed you with an offer to return to work with your previous position. We have not heard from you –OR– We have yet to receive your written consent –OR– You have not yet informed us of your desire to return. It is important we receive your decision, either way, so we can schedule work hours.
If we do not receive word from you within 48 hours, we will assume you are no longer interested in the position and accordingly reserve our right to have it filled by someone else.
You can call/email at any time if you have further questions (Phone _________; Email: __________). If we do not hear from you, the best of luck in your future job endeavors.
If someone refuses to return to work from furlough due to fear of the virus what are the appropriate steps here? I know we can try to explain the safeguards in place and the fact that the venues have no known cases of COVID-19. Should we just keep them out on furlough and leave them alone or can that be a quit?
Assume an employee has not tested positive, does not have the virus, has none of the symptoms, has not sought or received medical attention and there is no information of contacts with others having the Coronavirus. Notwithstanding, the person has a generalized suspicion it would not be safe to return to work. It is merely a personal belief.
At the Federal level, there is the Families First Coronavirus Response Act. This is the new federal paid sick leave, so technically it does not apply to our situation. But by analogy, it may provide some guidelines. There are only six reasons to receive benefits:
- (1) Subject to a federal, state or local quarantine or isolation order due to the Coronavirus.
- (2) Has been advised by a healthcare provider to self-quarantine due to concerns related to Coronavirus.
- (3) Experiencing symptoms of the Coronavirus and is seeking a medical diagnosis.
- (4) Caring for an individual who is subject to a self-quarantine order as directed by a governmental authority or healthcare provider.
- (5) Caring for a son or daughter if the school or place of care has been closed or is unavailable due to the virus.
- (6) Experiencing any other substantially similar condition specified by the Sec. of Health and Human Services.
Factor (1) does apply in California because of its stay-at-home quarantine order.
Then there are regulations at the State level. As mentioned, California currently has in effect a stay-at-home order which would apply to non-essential businesses. It applies even if an employee has no symptoms. And by definition, it would apply to mere generalized suspicions–since it applies to all persons in all circumstances as to these non-essential businesses. Further, the Federal Act does not preempt state law.
So as stated above, the company would technically have to continue the furlough.
The answer could also depend upon the relationship with the employee. If the Company really likes the employee or that person is indispensable, by all means you can allow him or her to continue on furlough.
For these reasons, the best solution is not to force a “Quit”, but send out the attached emails and let the employee make the decision.
If someone refuses to return to work from furlough due to underlying medical condition? I assume we keep them out on furlough and maybe have them complete an accommodation request?
The usual ADA rule has been the employer can ask an employee if they are able to perform work duties, but cannot ask about the disability itself. But the EEOC has changed this rule with the Coronavirus. Under new guidelines, if an employee does not want to come back to work for fear of contracting the virus due to an underlying medical condition, the company can actually ask the nature of the disability and even request medical documentation (while the same time keeping this information confidential) . Supposedly, this will better help the Company institute accommodations and prevent the spread of the virus those individuals.
Thus, effective April 23, 2020 the EEOC has stated:
What are an employer’s ADA obligations when an employee says he has a disability that puts him at a greater risk of severe illness if he contracts COVID and therefore asks for a reasonable accommodation?
A: The CDC has identified certain conditions (for example, lung disease) that put certain people at a higher risk for severe illness if COVID-19 is contracted. Thus, this is clearly a request for a reasonable accommodation and a request for a change in the workplace. Because employers cannot grant employees reasonable accommodations for disabilities that they do not have, employers may verify that the employee has a disability, what the disability is, and that the reasonable accommodation is necessary because the disability may potentially put the individual at a higher risk for severe illness due to COVID-19.
There may also be a situation in which the employee’s disability is exacerbated by the current situation. The employer may verify this as well. Aside from requesting a doctor’s note, other options to verify an employee’s disability may be to request insurance documents or their prescription. An employer may want to provide a temporary reasonable accommodation pending receipt of the documentation.
For this reason, if an employee states they have an underlying condition, you can follow up with the following email:
Thank you for your recent reply. To summarize, on our Company offers you the opportunity to return to work in your position as ____________. You indicated you would not be comfortable doing so and wanted to continue on furlough because of an underlying health condition.
We want to make sure you are safe at work and accommodate any disability. For this reason, please indicate the nature of your disability. Also provide medical documentation or a doctor’s note. This is in accordance with the recent guidelines of the EEOC on April 23, 2020.
In the meantime, we reserve the right to fill your position with someone else so we can productively operate our business. So, your prompt response would be very helpful.
This would not apply to obvious conditions such as age (over 65) which would not require medical confirmation.
If someone refuses to return to work from furlough due to lack of childcare should we just leave them out on furlough? Are they then entitled to the FFCRA 2/3 pay?
You have to be very careful here. Two recent laws give employees large entitlements in cases in which their child’s school has been closed. In California, all schools are closed through the end of the school year. This includes the following:
Families First Coronavirus Response Act–New Federal paid sick leave: up to 80 hours of paid sick leave at the regular rate of pay. Maximum is $511 per day or a total of $5,110.
Families First Coronavirus Response Act–New extended FMLA: If an employee stays home to take care of a child with a closed school, a person receives no benefits the first 10 days. But on the 11th day forward, there is paid leave at the rate of two-thirds of their regular rate of pay, not to exceed $200 per day and $10,000 total.
Obviously, this could be a financial drain on the Company if large numbers of employees insist upon these benefits. You want to avoid this as much as possible. For this reason, it is better to allow the employee to remain on unemployment and continued furlough. If you refuse the furlough (declare job abandonment or they have quit), you run the risk they will immediately apply for these benefits.
If we just don’t hear back from someone who we try to call back from furlough, I presume this will be considered a quit?
Yes, you can presume this is a “quit”. You would send the above emails, and if no response, confirm they have voluntarily quit.
Conclusion
To be safe, if an employee refuses to return to work while on furlough, let them continue in that status and do not force a termination or quit status. What does the company have to lose? The employee continues to receive unemployment and is happy with the situation. There is less danger the employee will be asking for the payout of additional paid sick leave.
As an HR professional, you can always inform the employee that you reserve the right to fill that position with someone else if they continue to be on furlough.
HR Consulting Network can act as your virtual Independent HR Consultant–either replace your existing HR Department or augment it with our ongoing HR consultation. And, we are equipped to prepare any documents required (for example, termination notices, warnings, employment agreements/confidentiality/noncompete, employee handbooks, write-ups, responses to claims, wage and hour disputes, legal memos to management, response to attorney demands, legal investigations, help with arbitrations or language used in your emails and communications with employees). Services can be on a retainer basis, hourly or flat fee. Our independent HR consultants have law degrees and 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.
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