Wyatt Employment Law Report


What If My Employees Don’t Want To Return To Work?

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.


The Supreme Court of Kentucky Issues Guidance Regarding Upcoming Trials

By Marianna J. Michael

Shortly after releasing its guidelines for reopening courts in the Commonwealth, the Supreme Court of Kentucky provided further guidance in regards to upcoming trials. The Order builds in time for courts to prioritize criminal proceedings that have been delayed as a result of COVID-19. As such, the Order makes the following provisions: Continue reading


A Practical Guide to Employee Temperature Screening

Michelle D. Wyrick and Lilian Williams

As businesses begin the first stages of reopening or increasing employee capacity, many have implemented or intend to implement temperature screening procedures. Some businesses are required to screen employee temperatures as a precondition to open under state or local law, as seen in Kentucky, while other businesses look to screen employee temperatures as a precautionary measure. Continue reading


Judicial Branch Task Forces Reveal Re-Opening Guidelines

By Marianna Michael

After convening three task forces to determine what measures to take to gradually resume in-person court services, the Supreme Court released its reopening plan on May 15, 2020. The Court’s goal is to implement a limited, phased reopening to allow access to the courts while keeping court personnel and the public safe through social distancing and other precautions.

Starting June 1, 2020, the Court will implement the following measures:
Continue reading


Employees Injured while Working Remotely may be Entitled to Workers’ Compensation

By Jacob N. Eldemire Smith

As a result of social distancing in the midst of COVID-19, employees are working remotely now more than ever. One of the many unique challenges facing employers as a result of the increased number of employees working from the confines of their homes is the ever-present risk that an employee could be injured while conducting work-related tasks. Employers and their insurers must be aware that, under certain circumstances, injuries suffered by employees in their domiciliary “workplaces” could be compensable under workers’ compensation laws—even if any personal, non-work related components of the employee’s work-from-home arrangement contribute to the injury. Continue reading


Kentucky Supreme Court issues Amended Order extending filing deadlines for the Kentucky Court of Appeals and the Supreme Court of Kentucky.

By Daniel Reed

On April 28, 2020, the Supreme Court of Kentucky issued Amended Order 2020-29 extending certain filing deadlines for the Supreme Court of Kentucky and Kentucky Court of Appeals by thirty days as a result of COVID-19. The deadline extension applies only to specified notices, motions, and briefs that would have been due between May 1, 2020 and May 31, 2020. Continue reading


Considerations When Severing Employment Relationships With Furloughed Employees

By Marianna J. Michael

As a result of COVID-19, employers have been forced to take a hard look at employment levels. Many employers have furloughed employees. Furloughing an employee is distinguishable from terminating an employee. A furloughed worker is still considered an employee, but they have been forced to take a temporary break from work without pay or had their work hours significantly reduced. This permits employers to cut costs without ending the employment relationship, and in most cases permits the employee to receive unemployment benefits.

However, as COVID-19 continues to cause problems and the speed of recovery remains uncertain, many employers will be forced to make the more difficult decision of formally ending employment relationships with some employees. Many employers will terminate individuals already on furlough. Employers need to be aware that the same rules that govern the “normal” termination of an employee apply to terminating an employee on furlough. Considerations employers should take into account include the following:

  • WARN Act: While furloughing employees did not trigger notice requirements under the WARN Act, employers who are permanently laying off employees now need to consider whether these employment losses trigger any obligations under WARN. Generally, an employer may have a duty to provide advance notice under WARN if 50 or more full-time employees will be laid off at a single site of employment in a 90-day rolling period. For more detail on the WARN Act, click here.
  • Health Benefits: Since the end of employment corresponds with the end of employer provided insurance, employers should see that terminated employees receive COBRA notices with regard to participation in any group health plan, as well as notices of the termination of coverage and conversion rights, if any, with regard to other benefits.
  • PTO Benefits: If employees do not exhaust PTO Benefits prior to termination, employers must determine whether applicable law or policy requires payout of those remaining benefits.
  • Severance Pay: Employers may have an obligation to pay severance under an employment agreement or severance plan or policy. A severance agreement, including a full release, should also be contemplated to minimize future litigation risk in appropriate cases.
  • Notice of Termination: Employers should follow their state laws and internal policies regarding notices of termination and whether they need to be in writing.

If you have any questions or concerns, please contact a Wyatt, Tarrant & Combs Labor & Employment attorney.