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Ask The Expert: Employees Who Refuse to Return to Work

Toby Graham /

Q: If we’ve had employees refuse to return to work, what should we do about their unemployment?

A: Unfortunately, there’s no one all-encompassing answer to this question. Before making any termination decisions, you’ll need to review the situation with your legal advisor.

In general, it’s a good idea to document that work was made available. In the case of a COVID-19 furlough, that may be an email or certified letter to an employee stating something along the lines of “we’re ready to have you return on September 1st, please confirm.”

Traditionally, if an employee ignored the offer or declined, they would not be eligible for unemployment after the new start date or return to work date. But a recent federal court ruling has thrown this into question. On August 3, a New York federal judge struck down 4 areas of the Families First Coronavirus Response Act’s paid sick leave provision, determining that the Department of Labor had exceeded its authority. Learn more in KPA’s recent article here.

Return to Work: There are a few more factors to think about.

Keep in mind that there are legal distinctions between furloughs and layoffs, and that the proper procedures for recalling either class of employees (or ex-employees) differ. Additionally, there may be Americans with Disabilities Act accommodations to consider.

For more detailed information and guidance, please contact us.

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