Bringing Back Furloughed Employees

June 26, 2020 – 

 

As Employers begin to return their employees back into the workplace, Vested HR has information that may help you in this process.

What Should Employers Consider in Bringing Back Furloughed or Laid-off Employees?

Just as with lay-offs or furloughs themselves, employers need to make sure that their procedures for choosing which workers will return to work, are done in a non-discriminatory manner. Adverse impacts on employees in protected categories could lead to legal claims against an employer. Accordingly, employers should keep some objective criteria in mind when bringing back these furloughed or laid-off employees in order to avoid possible unnecessary and costly litigation.

What if an Employee Refuses to Return to Work?

The first thing an employer should do when it is ready to bring furloughed employees back to work is send a written recall notice advising that the employee should return to work. The employer should also follow up with a phone call. Hopefully, that is the end of the story, and the happy employee returns to work as directed.
If, however, the employee pushes back about returning to work, the employer needs to discuss the reasons why with the employee. If the employee is sick, is taking care of an eligible family member who is sick or otherwise cannot return to work because their childcare is still closed or not available, then you should consider whether the employee may be eligible for leave under the FMLA or FFCRA, or whether some other reasonable accommodation should be evaluated.

Alternatively, if the employee indicates that she is afraid to return to work because of concerns about contracting COVID-19, the employer should ask for more details about where those fears are coming from (e.g., is the employee at a higher risk of complications if infected, is there a household family member with a higher risk of complications, etc.), and advise the employee what precautions the employer has taken to prevent the spread at the workplace.

On the other hand, if it becomes clear that the employee has only a general fear of contracting COVID-19 or is declining to return to work because the employee would prefer to continue collecting the enhanced unemployment payments, a different discussion should result. Employees in most states must be available for suitable employment and actively seeking work in order to remain eligible for unemployment compensation benefits. Although states have relaxed these requirements to some extent because of the COVID-19 pandemic, a furloughed employee typically cannot refuse to return to work because they prefer the unemployment benefits and remain eligible.

Therefore, when faced with this situation, the employer may:

  • Explain to the employee that returning to work is not optional. They are still employed by the company and, in many cases, may have remained on the employer’s health insurance plans at a cost to the employer.
  • Explain that refusing to return to work without a legitimate justification may cause the employee to become ineligible for continued unemployment benefits, and that the employer may be required to report this refusal to the appropriate state agency.
  • Explain that refusing to return to work may result in the employee’s termination of employment, which will trigger the COBRA-election period. In other words, the employer will no longer subsidize any portion of the insurance premiums, and the employee will have to pay the entire cost to continue his/her health insurance.
  • If the request is for a full-time employee to return to only part-time work, the employer should explain that a partial return-to-work may not render the employee ineligible for all unemployment compensation. The employee should still be eligible for the $600 CARES Act payment. However, it is important not to make any promises about eligibility because ultimately the state makes these decisions. That should also be explained to the employee.
  • If the employer is still having difficulty gaining the employee’s cooperation, the employer probably has grounds for terminating the employee if his/her employment is at will.