What to Do When Employees Do Not Want to Return to Work

Currently, all 50 states have begun reopening their economies after COVID-19 closures, which means small businesses across the county — from restaurants to gyms to hair salons — have reopened or are preparing to reopen.

Business owners know they need their employees to return in order to get back to business, but some are finding that not all employees are willing to return to work, often out of fear of being exposed to COVID-19.

When Employees Choose Not To Return to Work

Several states including Montana, Oklahoma, Tennessee, South Carolina, and Vermont have created websites where employers are asked to report employees who decline to return to work.

This can put business owners in a difficult situation, because reporting workers who decide not to come back to work can effectively put an end to their unemployment benefits, yet bringing employees back is required for loan forgiveness under the Paycheck Protection Program (PPP).

Luckily, employers don't need to worry about a reduction of their PPP loan forgiveness amount if they offer employees their jobs back in good faith and both the offer and rejection are documented, according to the U.S. Small Business Administration.

But the business owner still faces the issues of needing employees to run their business and the dilemma of whether to report employees who refuse to return to work.

What Business Owners Can Do

The first thing business owners with employees who do not want to return to work can do is to make sure they are taking all necessary precautions to keep employees safe, and to make employees aware of these precautions.

Specific strategies will differ depending on the type of industry the business is in. For example, the precautions taken for employees with close contact with customers will be different from precautions taken for employees who are able to socially distance from customers.

Businesses are regulated at the state and local levels when it comes to reopening after COVID-19, so it's very important to understand and follow the policy in place where your business is located. Failing to follow state and local law not only can expose you to fines and licensing issues, it can make employees unwilling to return to work.

Business owners may need to take additional precautions for employees who are at higher risk of complications from COVID-19. The U.S. Equal Opportunity Employment Commission (EEOC) has issued guidance for employers on handling requests for accommodations from employees based on COVID-19.

Employers should consider speaking directly with their employers about their concerns and working with them to make the workplace feel safe. Consider implementing solutions suggested by the Centers for Disease Control and Prevention on limiting exposure to COVID-19 in the workplace.

Are Employees Required to Return to Work?

Obviously, an employee cannot be forced to work any job they don't want to do. But whether they can still collect unemployment insurance benefits will depend on state law, which typically does not allow out-of-work employees to continue collecting unemployment if there is "suitable" employment available to them.

"Suitable" employment in the times of COVID-19 is complicated, but will likely depend on the employer's compliance with health and safety regulations and suggested protocols from organization such as the CDC and Occupational Safety and Health Administration (OSHA).

Keep in mind that some states, such as Vermont, do require employers to report employees who refuse suitable employment.

Challenges associated with the so-called Great Resignation have added to the complexity for employers during this time period as talent is moving on for a combination of reasons including increased pay, benefits, or better career opportunities according to Pew Research survey results. Some employees have also decided to rethink their career path and try entrepreneurship by forming a business.

Because state law varies and this is a new and complex area of the law, it is wise to consult with an employment law attorney who can advise you.

Related Resources:

• Safety Measures Small Businesses Should Keep in Mind When Reopening (FindLaw's Law and Daily Life blog)
• What Employers Need to Know About the Families First Coronavirus Response Act (FindLaw's Learn About the Law section)
• How to Update Your Employee Handbook After COVID-19 (FindLaw's Learn About the Law section)
• Can Employers Require Employees to Test for COVID-19? (FindLaw's Learn About the Law section)