By Shelby Matsumura
In some parts of the country, businesses are reopening and employers’ spirits are lifting. Many small business owners are thinking, “Finally, I can get my business and my life back on track.” However, what if you call up your employees and they don’t share the same enthusiasm as you? In fact, they express that they’re not ready to come back to work. With concerns over unemployment benefits incentivizing employees not to work and the persisting fear of the Coronavirus, employers may experience pushback with respect to reopening their businesses and returning to a pre-COVID-19 work model. Employers may have to make tough decisions regarding their businesses and their employees if they find their staff is not ready to return to work.
When non-essential businesses were shut down and shelter-at-home orders took effect, many employees began working remotely, were furloughed, or even lost their jobs altogether. As of May 2020, 20.5 million Americans were unemployed according to the Pew Research Center. In response to such hard times, unemployment insurance (UI) was created to provide temporary financial assistance to those who are unemployed through no fault of their own. While each state has its own requirements for eligibility, generally, an individual must meet these three standards to qualify for UI:
1. Unemployed through no fault of their own, such as a lack of available work;
2. Meeting the work and wage requirements prescribed by state law; and
3. Meeting any additional state requirements.
To learn more about your state’s unemployment benefits program, use this Unemployment Insurance Service Locator sponsored by the U.S. Department of Labor.
In response to the pandemic and to supplement state unemployment programs, Congress also passed The Coronavirus Aid, Relief, and Economic Security (CARES) Act. This Act was signed into law on March 27, 2020 to provide “fast and direct economic assistance for American workers, families, and small businesses, and preserve jobs for our American industries.” For more information on the CARES Act, check out the U.S. Department of The Treasury.
Although the amount of unemployment benefits may vary by state, weekly benefits usually average around $370. But under the Federal Pandemic Unemployment Compensation program (FPUC) created by the CARES Act, unemployment recipients collected an additional $600 per week. This extra amount has helped many Americans provide for themselves and for their families during the pandemic, but this surplus has created concerns for employers eager to get their employees back. With unemployment benefits currently hovering around $970 a week, this amount is not only comparable to some employees’ usual wages, but in some cases, much higher than what an employee was making at their previous job. For some small business owners, this wage disparity created by the CARES Act may pose a threat to plans for reopening and having employees return to the workplace. If workers can make more money through unemployment while avoiding any contact with the Coronavirus, then the idea of coming back to a potentially lower wage plus increased contact with others is not an attractive option.
In June 2020, Korn Ferry, a management consulting firm, conducted a study measuring how employees felt about returning to the workplace. This study revealed that only 32% of employees say it is highly likely they will return to the office once it reopens, even though 75% believe their employer will create a safe and healthy working environment for them. Furthermore, 64% of respondents who were working remotely during the pandemic said that they were more productive at home than in the office, despite individual distractions like pets or family members. Generally, when asked what they were most looking forward to about returning to the office, half said they would enjoy seeing their colleagues while 20% couldn't think of a single thing.
Returning to work is a serious and complicated decision influenced by many factors. For those employers who are concerned that an employee does not want to return because of their unemployment benefits, there are a few things small business owners should know before taking action against that employee.
Technically, if a worker refuses to come back to work because they want to continue collecting unemployment, then they are no longer eligible recipients. To receive unemployment, an individual must meet the standards under applicable state law or be unable to work due to a specific, COVID-19 related reason. An example of a Coronavirus-related reason would be if the employee had to provide care to a sick family member or that stay-at-home orders restricted their ability to come to work. However, this threshold is not met by a general fear of contracting COVID-19.
Furthermore, unemployment benefits exist to support those who are out of work by no fault of their own. According to the U.S. Department of Labor, employees who are collecting unemployment “must act upon any referral to suitable employment and must accept any offer of suitable employment.” If an employer is asking a furloughed employee to return to work, this request will likely be considered an offer of suitable employment that the employee must accept. Thus, if an employee does not want to come back to work, employers should ask them why they are refusing. As explained by Vinson & Elkins, if the employee does not give a reason that falls within the CARES Act, then the employer has grounds to report the employee to the relevant state workforce agency. They can inform the agency that this employee has been given the opportunity to return to work and that they have refused the offer, which could take them off unemployment. Some states even require employers to report these occurrences to protect against fraud. However, before making that call, remember that this pandemic has had an incredibly adverse impact on all of us. Just because an employee’s reason for not returning to work may be grounds for unemployment disqualification, they could still have important and authentic reasons for not returning to work.
This discussion reflects how many employers are concerned that employees do not want to return because unemployment benefits are “too good,” but these benefits will no longer be available after July 31, 2020. While this may be reassuring to employers, losing these extra benefits is a scary reality for many employees. Our legislature has explored the possibility of extending this perk until early next year via The Heroes Act, which was passed by the House of Representatives. However, as reported by USA Today, the Senate is unlikely to approve the Act due to these same concerns of unemployment benefits curtailing people’s desire to go back to work.
This cut-off date of July 31 may bring some relief to small business owners, but more likely than not, employees may still refuse to come to work out of persisting fear of COVID-19. While some employees may want to forego work so they can collect unemployment benefits, there are still plenty of Coronavirus-related reasons that would make an employee hesitant to return to the workplace. Communicating with your employees and continuously gauging their sentiment towards returning to work will be essential in deciding when to reopen your business. Although employers are eager to get their businesses up and running again, trying to force your staff to return to work, before they’re ready, will present difficult challenges for employers and employees alike.
Bryan Ackerman is the Los Angeles-based global leader for assessment and succession, leadership and professional development at Korn Ferry (the firm that conducted the employment survey). When asked how their company plans on addressing employee concerns over returning to work, Ackerman explained that they will monitor the sentiment of its employees and reassess the situation as it evolves. Ackerman states, “We're still reacting to a very volatile situation. The right answer is to do what people are comfortable doing and be as flexible and agile as we can." Korn Ferry also recommends this approach to their clients as well, according to the Society for Human Resource Management (SHRM).
Although we all miss our pre-COVID-19 world, it’s important for employers to take a step back and consider if now is truly the right moment to reopen their businesses, especially if their employees are uneasy about returning to work. Take the time to evaluate the measures your business has implemented in response to the Coronavirus. Have your employees been working from home? How has that been going? If working remotely has been relatively successful for your team, then it may be a good idea to continue with this practice until these uncertain times pass. In fact, many large employers, such as Google and Facebook, have extended work-from-home arrangements until at least September. Twitter is also allowing employees to permanently work-from-home if they wish.
Ultimately, we can all agree that we are itching to leave our homes and to find that stable normalcy that we took for granted before the Coronavirus. As many states begin to cut back on their COVID-19 prevention measures, small business owners may feel ready to follow suit and reopen their business’ doors. However, it is likely that employees may not share this enthusiasm and express that they don’t feel ready to come back. If employees, who were furloughed, do not want to return because they don’t want to lose the unemployment benefits they’ve been collecting, employers have a few courses of action. They can either let their employee go, report the employee to a state agency, or allow them to remain furloughed. Just remember though that your employees may be combatting all sorts of Coronavirus-induced battles that make these extra resources critical to their well-being.
However, if your employees do not want to return to work due to health concerns or possibly being exposed to COVID-19, this presents a greater area of uncertainty for employers. Generally, according to the National Law Review, employees don’t have the right to refuse work merely because of a potentially unsafe condition in the workplace. Under the Occupational Safety and Health Administration (OSHA) Act, an employee may refuse to come to work if:
1. They have asked the employer to eliminate a hazard in the workplace and the employer has failed to or refused to do so;
2. They have a good faith belief that an imminent danger exists in the workplace;
3. A “reasonable” person would agree there’s a real danger of death or serious injury; and
4. There’s no time to get the hazard corrected through appropriate channels.
Thus, if an employee thinks your place of business presents a threat under OSHA, then a complaint from them could lead to an investigation into your company. However, these 4 standards are specific and purposefully high to filter out the more arbitrary and general concerns. Nevertheless, if your employees are pushing back on reopening and hesitant to return to work, this may be a good opportunity to evaluate if it’s truly a good time to invite your employees back.
For more tips on creating a safe work environment and the CARES Act, check out Rayan Omer’s Legalucy article.
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