Returning Employees To Work Following Unemployment Requires A Tailored 10-Step Plan Of Action

As businesses gradually begin to ramp up and bring employees back to work, you may soon need to figure out what to do when employees who are receiving unemployment benefits refuse to return to work. After all, they may be reluctant or disincentivized to return to the job, especially if they can turn down your offer and still collect robust unemployment benefits.

As with all unemployment issues, the solution may differ from state to state – and employee to employee. But while the answers will vary depending on your workplace and individual employee circumstances, you can take steps now to put yourself in the best position to respond to such situations. We recommend an individualized 10-step plan of action to minimize your return-to-work headaches.   

The $600 Dilemma

With the enactment of the CARES Act, employees qualifying for unemployment benefits are in line to receive an additional $600 benefit payment over and above the regular unemployment payment. This benefit is courtesy of the federal government program and continues through July 31, 2020. In many situations, however, the additional $600 benefit has created a disincentive for employees to return to work. This phenomenon has caused a dilemma for many employers (and employees) as businesses start to reopen.

At the lower end of the economic scale, many workers are receiving more from unemployment than they would earn from their regular wages. However, to remain eligible for unemployment benefits in all but a few circumstances, individuals who have been placed on a temporary layoff related to the COVID-19 pandemic must return to work if called back. And since most state unemployment agencies require or request that you notify them when you call an employee receiving unemployment back to work, the agency will likely deny ongoing benefits unless the employee can demonstrate good cause for refusing the offer.  

“Good Cause” And High-Risk Employees

The determination as to what constitutes good cause for the job refusal, however, will be viewed in light of the COVID-19 pandemic and will be subject to agency review. The U.S. Department of Labor and many states have emphasized that an unreasonable fear over the risk of contracting the virus in the workplace is not enough to constitute good cause, and state agencies will likely deny unemployment claims if this is the only reason offered. 

Several states, however, including Washington, Colorado, Alaska, and Texas, have already adopted rules outlining when an employee’s refusal to return to work may rise to the level of good cause. These rules generally protect unemployment benefits for “high risk” or “vulnerable” employees, such as workers over 65 or with underlying medical conditions.

For example, Texas Governor Abbott has directed the Texas Workforce Commission to continue providing benefits even when the employee refuses an offer of suitable employment where (1) the employee is 65 or older or at higher risk for getting very sick from COVID-19; (2) the employee has a household member at high risk; (3) the employee or a household member has been diagnosed with COVID-19  (and not recovered); (4) the employee is under quarantine due to close contact or exposure to COVID-19; or (5) the employee has child care responsibilities and the school or daycare is closed (and employee has no available alternatives).  

10-Step Return-To-Work Plan To Minimize Unemployment Concerns

Given the complicated issues created by the COVID-19 pandemic, you should be careful to consider the best approach for your workplace and employees. A thoughtful and transparent return-to-work process will help ensure employee safety and boost morale. Here is a 10-point plan you should implement to ensure a smooth return-to-work for your organization.

1. In all cases, the first step is to develop a plan of action to reopen the workplace that provides a safe work environment for the returning employees. The plan should be consistent with guidelines for return to work developed by the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control (CDC). OSHA requires employers to provide a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The plan should include an assessment of risk based upon employee exposure levels to COVID-19 in the workplace, which will vary based upon the workplace and job. For example, a risk assessment will be different for an employee returning to an office setting (low risk) versus the risk to a worker on an assembly line (high risk). The risk assessment should also consider federal, state, and local laws to address high-risk or vulnerable employees.
2. Create and disseminate a return-to-work communication that outlines all the steps you are taking to comply with the recommended safety protocols, including policies to address high-risk and vulnerable employees.
3. As noted above, each state is approaching return-to-work situations differently. You should carefully assess the guidelines that apply to your operation before making any decisions regarding an employee’s refusal to return to work or continued employment.
4. Continue to permit alternative work, including telework or work at an alternative location where feasible, and providing partial employment and work share opportunities.
5. Clearly communicate the details of any return-to-work offer in writing (start date, hours to be worked, wages, job duties and location). 
6. If a return-to-work offer is rejected, develop a plan to address for-cause job refusals, including consideration of high-risk and vulnerable employees.
7. If required, report any refusal to return to work to your state unemployment agency.
8. Be sure to document an individual’s refusal of an offer to return to work. This is particularly important if you have taken out loans under the Paycheck Protection Program. The Treasury Department recently indicated that an employer’s loan forgiveness amount will not be reduced if the employer’s written offer to rehire is refused.
9. If an employee expresses concern about returning to work, keep the lines of communication open and try to determine and address any concerns, if possible. If applicable, engage in the interactive process to determine whether a reasonable accommodation can be made before requiring the employee to return to work.
10. Consider implementing a short-time compensation (STC) program, often called a shared work or workshare program, which allows employers to retain employees on a reduced schedule, while unemployment benefits make up some of the difference in income. 

What Else Should Employers Do?

As you begin the process of reopening, you may want to familiarize yourself with several alerts courtesy of Fisher Phillips LLP : 

• 5 Steps To Reopen Your Workplace According To CDC’s Latest Guidance.  
• 4-Step Plan For Handling Confirmed COVID-19 Cases When Your Business Reopens  
• FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers 

Employers Could Be Blindsided by Turnover

Your employees have struggled through the past few years of belt-tightening and downsizing all while being asked to work harder, smarter, or perhaps just longer. Experts now say there are signs of life in the job market and employees may now start doing what they have been dreaming about for years: quit. The problem is that most employers probably will not see it coming.

 

“Most companies are probably not fully prepared for all the…pent up turnover that is likely to come when the job market really turns around,” said David G. Allen, a management professor at the University of Memphis who has studied employee turnover.

 

Some employers seem to be complacent now as to IF their employees will be able to find a better job somewhere else. For as many bosses that have complained about how hard it is to find good workers, even fewer have paid much attention to keeping the good employees that they currently have.

 

“People are saying that they can’t find the right talent, and yet when they do they don’t take such good care of it,” said Sandi Edwards, Senior VP of AMA Enterprise, an arm of the American Management Association that helps companies improve their workforce.

 

Employers have not had to work too hard recently to keep good workers. The unemployment rate hit a high of 10% in the fall of 2009 as the nation was coming out of a recession and has continued to remain elevated even as the economy has slowly added jobs. The jobless rate stood at 7.7% in February 2013, with 12 million Americans actively looking for work.

 

This has left many workers grateful to just have a job with less focus on finding a new job even if they did not like their current one. The job market is steadily improving, but Allen cautions that it is not strong enough yet for employees to have the upper hand yet.

 

Some employers may be aware that the risk of losing their best employees is on the horizon, but they are not necessarily taking proactive steps to help safeguard against it.

 

A recent survey of 2100 CFOs found that 38% said retaining valuable staff was a top concern for the next year, but only 13% said improving morale and engagement was a top concern.  Paul McDonald, Senior Executive Director of staffing firm Robert Half International feels it is a mistake to not work harder to make employees happy. “The main reason people leave is unhappiness with management,” according to McDonald.

 

It is not necessarily a bad thing though for some unhappy employees to quit. Typically workers who are just there because they can not find a better job are not usually the best employees. They characteristically do not perform as well or they do not engage in things that falls outside of their job description.

 

Peter Hom, a management professor at Arizona State University, noted that the first employees to quit when the job market improves are usually the ones that you least want to lose since the most valuable employees are often the most sought after by others.

 

Many researchers argue that it is not just money that keeps workers loyal, although a nice pay package and good benefits help as well. Allen said that his research has shown that workers also place a large amount of importance on relationships with their colleagues, especially with bosses.

 

Smart companies need to make sure they are making their employees feel valued. If they are asking for more from them then they have to engage employees more and it does not have to be just in terms of money.