The New York Times printed a prominent article last week lamenting that workers have been asked to come back to their jobs, and those that are refusing because of fear are losing their jobs and often lucrative unemployment benefits they have been eligible for during the COVID-19 shutdown.

ASE is receiving daily calls from employers experiencing the same situation. Employers, finally able to start operating are facing employees that are not returning to work when asked. Some have very good reasons. Many though, are giving reasons that they cannot or will not provide verification on. Some are saying they will report to work, and then they do not show up. One incident reported that an employee who was expected to report to work decided to go to Chicago to fly his drone over Wrigley Field once before he came back to work.

Safety - The New York Times article reported that all the employees they reported on were fearful of contracting the virus – perhaps understandable. That is why employers re-opening need to first implement necessary safeguards as prescribed by state Executive Order, MIOSHA, Centers for Disease Control (CDC), and other reputable guidance starting with the firms own Response Plan.

Notification - Once the work site safety measures are in place, the employer needs to communicate what it is doing to maintain safety and what is expected of workers that return. ASE is hearing employer reports of employees refusing to wear safety masking. Masking is an enforceable safety rule whereby failure to abide should result in discipline or discharge. If the employee states they cannot wear it for medical reasons (disability) the employer needs to engage in the accommodation dialogue and can require the employee to bring in documentation of the disability. Failure to provide appropriate documentation allows the employer to apply its best remedy including laying the employee off or letting them go if they refuse to follow the masking rule.

Request a Reply - It is recommended formal notice of return be sent with a request to respond by a certain date. The letter should communicate the safety measures put in place and that will be enforced when employees return to the office.

Review the No Return Request – After reviewing reasons why an employee states he/she cannot return to work, the decisions should probably be made on a case-by-case basis. This will allow two things.  1. An honest evaluation of the request.  2. The employer exemplifies empathy and support (positive employer-employee relations) to employees with legitimate reasons to remain out.

Employer Response - When an employee without a valid, supportable reason chooses not to return, the employer can decide to continue their layoff or terminate their employment. In both cases the employer should notify the state unemployment compensation agency that a job offer was made and refused by the worker. This should disqualify the worker from benefits, and if the employee continues to certify that they continue to be laid off, they risk being guilty of fraud. This piece of information, if communicated to the worker, may change their mind about staying out.

To continue to qualify for unemployment, once a return-to-work notice is given, the worker needs to show they are directly affected by the virus: a diagnosed case, caring for someone, or being quarantined.

Over the weekend it was reported the Michigan Unemployment Insurance Agency has opened up a fraud taskforce and they have flagged over 340,000 possible fraudulent claims during this period that they will be investigating. Payment of unemployment benefits to ineligible workers will cost the state and eventually employers a lot of tax dollars going forward.

It was also reported on Friday that over 2.5 million jobs came online as employers re-opened. Jobs will increase exponentially in the coming weeks as states loosen stay-at-home orders and allow businesses to re-open. Employers will need the freedom to fill jobs quickly in order to survive or avoid bankruptcy. Waiting for employees to decide if and when they want to return after all this is a tough position to be in.

It is every individual’s right and privilege to make their own decisions as to whether and whom they want to work for. Unfortunately, the New York Times article tries to make the employers out to be the bad guys. Deep in the article they quote the owner of a Tea shop whose had an employee request they not re-open. He states quite humbly, “They wanted to wait a little bit longer till the danger has passed. But for us, a small business, the danger is imminent.” He was referring to the survival of his business and his livelihood. He was also referring to a state law that requires employers to report workers being dismissed to avoid a state fraud claim against them.

Employers will be making King Solomon like decisions about workers in the coming weeks and months. Employers need to understand their rights and how to communicate with workers that are requested to return to work.

ASE continues to provide new and updated resources for its members to assist them through all the phases that this pandemic has them struggling through.

Source: Workers Fearful of the Coronavirus are Getting Fired and Losing Benefits New York Times (6/4/2020)