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Getting Back to Work: What To Do When your Employees Would Rather Be On Unemployment

Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A.

With the federal unemployment enhancement contained in the CARES Act ($600 per week) and the relaxed unemployment rules adopted by many states, it is not an uncommon problem for companies to find that employees simply do not want to return from layoff.  So whether you are an Essential Business or Essential Operation with employees who have concerns over the possibility of contracting COVID-19 at work or you have employees reluctant to return from layoff for the same reason or the fact that they can replace most or all of their income through unemployment, this is going to be an issue for many, many companies in the coming weeks or months.

In Ohio, current Ohio Department of Job and Family Services (ODJFS) rules and guidance states that an employee who has available work from their employer should not be granted unemployment benefits if the employee refuses to work without good cause.  This – the without good cause requirement – is potentially problematic as ODJFS may (and at times has done just this) interpret refusing to work out of fear of contracting COVID-19 as good cause. The Department of Labor (DOL) recently issued guidance related to the CARES Act unemployment enhancement which states that “quitting work without good cause to obtain additional benefits may be considered fraud.” This gives arguments that employees must return but there is no guarantee as to how your employees or ODJFS will handle these situations.

That same CARES Act DOL guidance states that if an individual obtains benefits through fraudulent measures, the employee or individual will be:

  • ineligible to receive any future unemployment compensation benefit payments;
  • responsible to pay back the benefits obtained because of the fraud; and
  • subject to criminal sanction and prosecution.

As a result, it may be advisable to report any cases of suspected fraud to ODJFS.  Take the position that refusing to return to work out of a desire to collect unemployment or quitting available work to obtain unemployment could be considered fraud.  At that very least, and even if ODJFS disagrees as to that employee/your employees, it sends a message that you will not allow your employees to collect benefits to which you do not think they are entitled without a fight.

That said, and as stated above, there may be situations where an employee’s decision not to return to work will be considered good cause. In addition, these same employees may be unwilling to return to work due to child care closures or a school closure which would make them eligible for EFMLA and EPSL even if they do return.   However, in these situations, you can put employees in a position to make a decision – would they prefer to resign and stay on unemployment or would they like to return to work, albeit directly into an EFMLA or EPSL leave of absence (if otherwise eligible) .  In short, if there is work available, and they refuse to remain at work or return to work from layoff, employers have options as to dealing with these employees.

If you have any questions, please contact Attorney Michael J. Bogdan (mbogdan@kwgd.com).

NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.

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