The return-to-work balancing act

How employers can navigate an often tricky situation

Despite the fact that many New Hampshire employers are beginning to reopen or are ramping up operations, total claims for unemployment continue to increase. Although the number of new filings has recently been dropping week by week as the economy begins to slowly reopen, the number of people still receiving unemployment benefits are at near-record levels and are not decreasing. It’s likely that certain state and federal rules relating to unemployment benefits are contributing to these high numbers.

No doubt, many furloughed or laid-off employees are eager to get back to work. However, employers are encountering situations where some employees are reluctant or even refuse to return to work. Based on Governor Sununu’s Emergency Order No. 5, and the federal CARES Act, both of which expanded unemployment benefits for Covid-19-related reasons, individuals qualify for unemployment benefits when they are able to self-certify as to being unable to work due to one of the enumerated circumstances related to the pandemic.

However, the New Hampshire Department of Employment Security does not require any supporting proof, which provides wide latitude to employees in qualifying for unemployment benefits.

In addition, the CARES Act provides an additional $600 of weekly federal unemployment benefit to recipients until July 31. For many employees, this results in their unemployment benefit being more than what their regular weekly earnings would be. However, in guidance about the expanded unemployment reasons under the CARES Act, the U.S. Department of Labor states that an employee who simply wishes to continue receiving enhanced unemployment benefits is not eligible for such benefits.

According to both the USDOL and NHES, an individual who refuses an offer of work is eligible for unemployment benefits only if the individual is unable to work as a direct result of Covid-19, but a subjective general fear of exposure to the coronavirus is not one of the related reasons enumerated in the CARES Act and does not establish eligibility for unemployment benefits.

Therefore, employers should put their offers to return to work in writing and explain the measures being implemented in accordance with applicable guidelines for a safe workplace.

Employees who are reluctant to return to work, or who refuse the offer, should be asked to explain their reasons. If an employee provides vague reasons or mentions they want to keep receiving unemployment benefits that are greater than weekly earnings, the employer may be justified treating such refusal as job abandonment. The employer also should report the offer to return to work to NHES. If the employer has clear knowledge that the reason the employee is refusing to work would not qualify them for unemployment, it should also report this to NHES.

Of course, there are valid reasons an employee needs to stay out of work, and employers will need to have a dialogue with the employee to understand the employee’s concerns and whether the employer has legal obligations in addressing such concerns.

For example, if an individual has symptoms related to Covid-19 or lives with someone who has Covid-19, it is important that they stay home for their health and/or to prevent the spread of the virus. The employee may need to stay home to care for their child whose school or day care is unavailable due to the pandemic. In these situations, the employer will need to comply with employment laws and its own policies on leaves of absence, job reinstatement and, if feasible, consider extending the employee’s ability to work from home.

If the employee has an underlying medical condition that makes them vulnerable to Covid-19 and qualifies as a disability under the Americans With Disabilities Act or New Hampshire’s Law Against Discrimination, the employer is required to engage in an interactive process to determine if reasonable accommodation is needed (for example, more safety protocols in the workplace, allowing continuation of remote working, or extending reasonable duration of leave). Anxiety disorders, which can also qualify as covered disabilities, may also prevent an employee from feeling able to go to work during the pandemic.

Unlike unemployment qualifications, in these types of situations an employer can require the employee to provide a doctor’s notes certifying to the physical or mental condition and providing guidance on what accommodation the employee needs in order to safely perform the essential functions of their job. If the employee expresses concern regarding the safety of the employer’s workplace, the employer should be ready to explain all the measures and protocols it is putting in place to comply with the Governor’s Universal Guidelines and latest guidelines from the CDC and OSHA.

Balancing employees’ concerns and the need to staff the workplace has never been trickier for employers.

Andrea Chatfield, an attorney with Cook, Little, Rosenblatt & Manson, is vice chair of the Business & Industry Association’s HR, Healthcare & Workforce Development policy committee.