Back to Work Interim Toolkit
Ver 1.3
August 6 , 2020
3 . If an employee is reluctant to return to work and doesn ’ t fit any of the exceptions noted above , can that employee be disciplined ?
If the business has re-opened consistent with the state guidelines and : ( 1 ) the employee is not entitled to job-protected leave under the FMLA , FFCRA , the employer ’ s policy , or state or local law , and ( 2 ) does not require an accommodation because of an underlying medical condition or because s / he is in a highrisk group for developing complications of COVID-19 , and the employee refuses to return to work for a reason other than one of those listed in the CARES Act , s / he may no longer be eligible for unemployment benefits . Further , if the employer has considered all of these factors and the employee still refuses to return to work , the employer may be entitled to discipline the employee . However , we encourage employers to seek legal guidance before disciplining or terminating an employee for refusing to return to work . Further , employers can consider incentivizing employees to return to work by offering bonuses , pay increases , and other incentives . Again , we encourage businesses which are considering offering these types of incentives to seek legal counsel before doing so to ensure that they are fully aware of any wage-and-hour and other legal issues which may be implicated .
4 . After thoroughly assessing and documenting the employee ’ s reasons for not returning to work and determining the employer has no obligation to accommodate the employee as per the above , if an employer wishes to notify the Office of Unemployment Compensation that the employee has refused to return to work , how is that done ?
The employer may fill out and submit a Form 1921 on the Office ’ s web site here .
Jackson Lewis has a number of resources which are available to employers regarding various state and local laws relating to the COVID-19 pandemic , including the most recent stay-at-home or business reopening proclamations and other helpful information that you can pass along . That information can be accessed by signing up at the following link : https :// interact . jacksonlewis . com / 67 / 2430 / landing-pages / blank-covid-19-advisor-registration . asp .
Also , follow Jackson Lewis ’ real-time state charts , tracking COVID- 19 developments here :
• Closure Orders : http :// bit . ly / JLClosures
• Mass Gathering Limitations : http :// bit . ly / JLGatherings
• Paid Family Leave Guidance : http :// bit . ly / JL-PFL
• Predictive Scheduling Guidance : http :// bit . ly / JLPredict
• Paid Sick Leave Guidance : http :// bit . ly / JL-PSL
• State Disability and Workers ’ Compensation Guidance : http :// bit . ly / JL-Dis-WC
• Unemployment Insurance Guidance : http :// bit . ly / JL-UI
• Health Screening : http :// bit . ly / JL-Health
© 2020 Jackson Lewis P . C . This material is provided for informational purposes only . It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient . Recipients should consult with counsel before taking any actions based on the information contained within this material . This material may be considered attorney advertising in some jurisdictions . Prior results do not guarantee a similar outcome .
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