Wyatt Employment Law Report

Michelle D. Wyrick and Joseph Profancik, a 2020 Summer Associate

As the country sets its sights on reopening the economy, many Americans are understandably hesitant to return to work. Although most states claim that COVID-19 has seen its peak, the number of daily infections reminds us that the virus is still looming all across the nation. Nevertheless, states such as Florida and Tennessee, with numerous states following in their footsteps, have significantly loosened their restrictions and allowed businesses to open their doors once again. As businesses reopen, they will likely face some of the following questions from some employees who are hesitant to return to work.

What if My Employees Don’t Want to Return to Work Because They Make More Money on Unemployment?

In response to the bleeding economy, Congress recently prescribed the CARES Act, which, among other things, allocates an additional $600 per week to unemployment recipients. In many cases, Americans are currently bringing in more money while on unemployment than if they were working. As a result, some Americans may be incentivized not return to work. In fact, the Department of Labor anticipated such a response and reminded states that they have the obligation to detect waste and fraud in the unemployment insurance system. Many states, including Tennessee, have set up websites for employers to report employees who refuse to return to work.

But can an employee actually refuse to return to work despite the reopening? As an initial matter, the Department of Labor has stated that refusing to return to work, solely because a claimant is taking in more money while unemployed, is not a qualifying refusal. In order to receive unemployment benefits, an individual must be willing and able to work, so a refusal such as this could result in the termination of benefits.

What if My Employees Are Afraid to Return to Work?

Nevertheless, if an employee is afraid to return to work because they fear exposure to COVID-19, the employee may still qualify for unemployment benefits, depending on the circumstances. Kentucky, like several other states, has determined that individuals who leave work “due to a reasonable risk of exposure to infection (self-quarantine) or to care for a family member affected by the virus” have good cause for not working. Likewise, the Occupational Safety and Health Act of 1970 (the “OSH Act”) protects an employee from discriminatory action if the employee in good faith refuses to work under conditions that he reasonably fears will subject him to serious injury or death where he has no other recourse. To be clear, the OSH Act does not give an employee an unqualified right not to return to work. It does, however, prohibit an employer from treating the employee less favorably than similarly situated employees. Whether an individual continues to be eligible for unemployment benefits if she claims she can’t return to work because of risk of exposure to the coronavirus likely depends on the measures an employer has taken to make the workplace safe, including complying with OSHA’s Guidance on Preparing Workplaces for COVID-19 and the Centers for Disease Control’s Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019, and what accommodations have been offered to the employee to reduce the risk of exposure. Kentucky has indicated that if an employer provides reasonable accommodations for employees at their workplace or offers an option to telecommute, the employee must work if it is offered by the employer.

An employee may not simply choose to continue to collect unemployment benefits once he has been called back to work. However, if an employee expresses fear of returning to work because of potential exposure to COVID-19, it will be important for employers to ensure that they have taken appropriate steps to protect employees’ safety as recommended by current guidance and that they have considered the availability of reasonable accommodations under the circumstances.