HR Hotline: What Happens When an Employee Declines to Return to Work?
Q: An employee declined our offer to return to work. What do we do next? Do we notify the Connecticut Department of Labor?
A: The state labor department has posted a series of frequently asked questions as guidance for employees and employers.
The employer section includes the following:
Q: I have asked my employee to return to work, but the employee is unable to return to work, is concerned about returning to work, or has asked that I lay the employee off so that the employee can receive benefits, including the additional $600. What do I do?
A: DOL cannot advise on whether you should lay off an employee or not. However, If your employee has refused to return to work, and is filing for benefits, you may protest on the Notice of Potential Liability that you will receive from DOL indicating the claimant refused work and return it to the Merit Rating Unit, or send in notification on company letterhead with pertinent information, such as claimant name, Social Security Number, date of refusal, date work supposed to start, with your contact information, including fax number, to the Merit Rating Unit at 860.263.6723. The matter will be then be scheduled for a fact finding to determine whether the claimant refused work without sufficient cause. If so, the claimant’s benefits will be stopped until the employee has returned to covered employment and earned at least six times the individual’s benefit rate. If the employee believes, however, that returning to work poses a health risk, the department may find that the work is not suitable employment under the law and claimant would not be denied benefits.
If you don’t contest an employee’s refusal to return to work by reporting it as indicated above and the employee continues to receive benefits, it’s unlikely to trigger a charge to the company’s unemployment compensation tax experience account if it’s COVID related.[Update: Gov. Ned Lamont signed an executive order June 1 giving the state’s labor commissioner the discretion to allow employees recalled to their jobs to continue to receive unemployment benefits if returning to work poses a risk to the worker or their household.]
On April 9, Gov. Ned Lamont issued Executive Order No. 7W which included a provision that COVID related unemployment benefits payments would not be charged to employers’ unemployment experience tax accounts, thereby avoiding increased UC taxes.
However, while the company isn’t hit with any monetary consequence such as higher UC tax rate, you may still be losing out on a needed worker.
Also, at some time in the future, someone has to pay for all this, and the system is set up to pay benefits in certain designated situations, and this is not be one of them. So it may be wise to file the challenge to their eligibility.
Rights and Obligations
An offer of rehire should be documented in writing, text, or email, and note the position offered, rate of pay, work hours, benefits, and start date. Inform the employee that if they do not respond within three days, you will conclude they are not interested in or available for work.
Should you alert the employee that their failure to return to work may jeopardize their continued eligibility for UC, so maybe they should resume working?
You don’t have any formal obligation, but why not alert the person? Are you looking to ambush them later, or to get them back to work?
You can properly claim you have a legal obligation to respond to the Notice of Potential Liability truthfully, and then it’s a matter between the employee and the department of labor, not up to the company.
It is wise to ask the declining employee why they are unwilling to return to work, so you can identify situations where they may have a legitimate excuse—such as compromised health (with a doctor’s note), caretaker for ill family member, incorrect perception that the workplace is unsafe—in which case they should be eligible for UC benefits.
If they just prefer to stay home and collect unemployment, possibly more than their regular paycheck, that would be a situation in which they are technically and legally not entitled.
HR problems? Email or call Mark Soycher at the HR Hotline (860.244.1900) | @HRHotline
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