May 13, 2020
Russell L. Lichtenstein
Q: I am about to begin to open my business and have reached out to my staff to bring them back to work. A couple of my employees have indicated to me that they are better off receiving unemployment benefits than coming back to work. Another employee has advised me that he/she is nervous about returning to work. What can or should an employer do?
A: This has become an increasingly frequent question from our employer clients as we, hopefully, move toward the reopening of businesses in New Jersey.
First of all, and obviously, employers should engage in all best practices to ensure the health and safety of all employees returning to the workplace following a shut down.
Unwillingness to return to work because an employee is making enough on unemployment or due to an employee’s fear and apprehension about returning to the workplace, does not excuse an employee from returning to work when recalled. Further, employees who are offered an opportunity to return to their employment under the same terms, conditions and compensation as before any furlough or layoff are obligated to either return to work or, otherwise, advise the New Jersey Department of Labor and Workforce Development (DOL) of the fact that the layoff or furlough has ended. With certain exceptions, employees refusing to return to work without a legitimate medical or other reason may be subject to discharge for job abandonment. Further, employers may be required to advise the DOL of the fact that an employee has been offered an opportunity to return to their previous employment and has refused that offer.
Simply stated, preferring to receive unemployment compensation rather than returning to work, or fear and/or apprehension concerning returning to the workforce, is not a basis to continue on the unemployment rolls. Further, continuing to receive unemployment benefits after being requested to return to work may represent unemployment fraud, depending upon the information provided by the employee to the DOL.
There are certain significant exceptions to this general rule which fall within the categories outlined in the Families First Coronavirus Response Act (FFCRA). Specifically, the FFCRA provides for additional consideration, and in many cases paid leave, for employees who are unable to work because the employee is quarantined or because the employee has a bona fide need to care for an individual subject to quarantine or to care for a child whose school or childcare provider is closed as a result of COVID-19. In the event that employees indicate an unwillingness or inability to return to work for these reasons, employers should check with their employment law attorneys for additional guidance to assist in navigating the maze of state and federal protections which may be applicable to such employees.
The Employment Law Practice Group at Cooper Levenson is fully operational and ready to assist you in these very difficult times. Please reach out to Practice Group Chair Russell Lichtenstein at (609) 572-7676 or rlichtenstein@cooperlevenson.com in order to schedule a consultation on any employment related issues which you may be encountering during these most difficult times.
Stay safe and healthy.
Our e-mails about recent developments are not intended to substitute for our legal advice to our clients based on your specific needs or requests. In addition, our guidance is subject to, and can be superseded by new laws, rules, regulations, or orders, particularly during the current public health where regulations and directives can be issued on a daily if not hourly basis. Moreover, some directives from the Federal and State authorities can appear, and can be, contradictory or in conflict, so please contact us for assistance.
