May 11, 2020
By: Patricia A. Wise
As pandemic conditions continue, employees may be reluctant to reenter the workplace. Some may even refuse to return to work. Fear and anxiety are understandable, and most every employee has certain risk factors applicable to themselves or to those they live with. But without medical documentation, refusing to return to work is not justifiable at this point. Stay-at-home orders are expiring, and even “non-essential” employers are resuming operations. Most employers will need to move forward with termination, as they are unable to hold positions open indefinitely, and work must be completed.
First, employers should ensure that they are taking all efforts reasonably available to ensure the safety of the workplace. This means following Ohio Department of Health Directives, OSHA, and CDC guidance and applicable industry standards. It would be helpful to let employees know what precautions an employer will be taking to safeguard the workplace.
Second, employees should be informed that fear and anxiety, without a medical directive from a health care professional, is not a justifiable reason for leave or continued absence. Employees should be advised in writing that work is available, that they are expected to return as of the date required, and that they may not qualify for unemployment compensation benefits if they refuse to return. Ohio has a special reporting form for employers to report all employees who quit, or refuse to return when they have been notified that work is available:
This will be important documentation as employers’ experience ratings are calculated based on the chargeback of paid claims.
Third, employers who intend to seek loan forgiveness for their Paycheck Protection Program loans should also maintain this critical documentation. On May 3rd, the SBA and the Department of the Treasury announced an exemption that would allow employers to exclude laid-off employees from the loan forgiveness reduction calculation. The exemption may be available if the employer can document that it offered reemployment or recall to employees (to positions with the same compensation and for the same number of hours), and the employees refuse to return. The employer should also document offers to return under revised terms of employment, however, as the final rule has not yet been established. The extent of this exemption, which is considered “de minimus” is unknown. But, without documentation, it will likely not be available at all.
Every employer must take into account the circumstances of its own workplace and workforce in this process. It may be that some employees can continue to work remotely. For those employees who qualify for FMLA, other types of leave, or for potential accommodations pursuant to the ADA/ADAAA, individual determinations will be necessary.
Feel free to contact us with any questions.
This article is meant to provide a summary of potentially applicable issues and updates, is not comprehensive as to all potential legal issues or topics, and is not legal advice.