COVID-19: When Employees Refuse to Return to Work

Coming back to work after an extended period of time can be difficult for anyone.  And still being in the midst of a pandemic does not make the return to work any easier for those who have been called up from telework or unemployment.  However, what are employer options when employees refuse to come back or want to keep receiving their unemployment benefits?   New federal and state employment laws regarding allowances for those impacted by the coronavirus make this a tricky obstacle to overcome on the path of getting back to business as usual. 

Unemployment vs. Return to Work

            For those that experienced unemployment due to their place of work being shut down over coronavirus concerns and government closures, unemployment is turning out to be kind of a good deal.  In many cases, former employees, especially those in retail or restaurant landscapes, are making more money via unemployment benefits than they were making as full-time employees and aren’t especially looking to go back to work.  While getting paid to stay home seems like the idea to stick with, there is potential to lose those benefits if you are offered employment again.  This means additional federal benefits such as Pandemic Unemployment Assistance (PUA) that have become available through the Coronavirus Aid, Relief, and Economic Security (CARES) Act as well as state unemployment benefits. 

Legitimate Reasoning

            While some employees may refuse to come back to work on the grounds that they simply do not want to or are afraid of contracting coronavirus if they return to work (neither of which constitute a qualifying reason not to return to work if offered) there are specific cases in which they can refuse employment and continue with unemployment benefits under the CARES Act.  An individual must prove that they are unemployed, partially unemployed, or unable to work for one of the following reasons:

• The individual has coronavirus or has exhibited symptoms and is awaiting a diagnosis from a medical professional
• A member of the individual’s household has been diagnosed or is awaiting a coronavirus diagnosis
• The individual is providing care to someone in their household with coronavirus
• A child or other person in the household for which the individual is the primary guardian is unable to attend school or another caregiving facility as a direct result of the coronavirus public health emergency and the type of care not currently available is required for the individual to work
• The individual is unable to reach the location of work as a direct result of the coronavirus public health emergency
• The individual has become the sole economic resource for the household because the previous support has died as a direct result of coronavirus
• The individual has to quit their job as a direct result of coronavirus
• The individual’s place of employment has closed as a direct result of coronavirus
• The individual meets any additional criteria under the law

Paycheck Protection Program (PPP) Loan Forgiveness

            When it comes to the PPP loan and getting the full amount forgiven for the employees that were on payroll before coronavirus shutdowns, more is more.  If an employer took out a certain loan amount and can’t show the need for it (i.e. employees being offered positions to come back to work and not taking them), there are options.  Employers need to take the proper steps and be able to show that an offer was given, an offer was refused, and the reason for a refusal.  If the refusal is a result of something other than the previously listed legitimate reasons, an employer can report it to the corresponding state agency for unemployment.  As long as a written offer of employment with the same wage and hours the employee previously had was made in good faith, and the refusal was documented, employers will be able to keep their original loan forgiveness amount.  Additionally, employers have now been given until December 31, 2020 to rehire employees that were laid-off if they are still seeking loan forgiveness. 

Addressing Concerns

            While the fear of contracting coronavirus is not a legitimized reason not to come back to work if offered employment, it does not mean it’s not a fear that needs to be mitigated for many employees before they return.  Open lines of communication are key to allowing employees to voice their concerns.  Such concerns and fears should be met with empathy as well as processes and procedures put in place to protect the employees to the best of the employer’s ability.  Additionally, employers should do their best to make accommodations where applicable if it does not cause undue hardship on the business.  Allowing employees to understand that their fears are real and helping them understand they are protected will be the likely reason many who were hesitant, will feel comfortable to return to work.

For Employers in Nevada

            If you are an employer in Nevada that has had employees refuse to return to work, work refusals can be submitted to the Nevada Department of Employment, Training, and Rehabilitation at:

• jobbankmpkwy@detr.nv.gov
• Subject Line: Work Refusal
• Details: Employer information – Name of Business, Address, Phone Number, Name of Employer Representative, FEIN, Employee Name, Last 4 digits of their social security number, Date they were notified of return to work, and reason for refusal

Information for Nevada provided by the Nevada Association of Employers. 

For more information:

• Nevada Association of Employers
• Nevada Department of Employment, Training, and Rehabilitation
• Unemployment Insurance Relief Information via the Department of Labor