BPHR’s Director Lisa Salcido, SPHR, SHRM-SCP provides answers to your pressing HR questions.
Question: Our business closed during the pandemic, but we are ready to recall our employees back to work. How should we respond to workers who refuse to return?
Answer: As workplaces reopen, many employees are reluctant to return due to health and safety concerns, childcare responsibilities, or enhanced unemployment benefits. A reasonable refusal to work may be protected by law. Before assuming the refusal is a resignation, employers should engage in a dialogue to identify the workers’ concern and document each incident.
OSHA allows employees to refuse to work if there is an “imminent danger” that the employer fails to eliminate. However, a generalized fear of contracting COVID-19 is not enough to justify a refusal to work. Communicate that your workplace is safe and avoid liability with a return to work notice. The notice should provide the date of recall, any changes to the work schedule, steps taken to reduce the risk of exposure and availability of any safety training programs.
Immunocompromised employees hesitant to return may be entitled to leave benefits or an accommodation. Parents without childcare may be covered under state sick leave laws or the Families First Coronavirus Response Act (FFCRA). Terminating a worker who refuses to return because of a reasonable safety concern, or denying a request for leave or an accommodation, could incite a whistleblower or retaliation claim.
Some employees are requesting to stay on layoff or furlough status because Pandemic Unemployment Compensation (PAU) provides an additional $600 a week. Receiving more money from unemployment benefits is not a justifiable reason to decline an offer to return to work. Employers may respond by requiring staff to return or treat this request as a resignation. In New Jersey, employers must report failure to accept suitable work on the BC-6 form.
Paycheck Protection Program (PPP) loan forgiveness will not be reduced due to employees who refused to be recalled, but proper documentation of employment offers and reason for rejection is essential.
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Have a question for Lisa? Email her directly.
DISCLAIMER: The material presented on this page is for informational purposes only and does not constitute legal advice or legal opinion.