Can We Fire an Employee Who Rejects an Offer to Return to Work?

By Marylou Fabbo - Skoler, Abbott & Presser, P.C.

May 18, 2020

When your company is ready to reopen, will your employees be ready to return?  Now that some employers are receiving the go-ahead to start opening back up, some employers are likely to face challenges getting their employees to return to the workplace.  There are a lot of reasons  (other than illness) why employees may not want to return.  Employees who have taken a break from the workforce for the first time in their lives may have decided that the daily grind isn’t for them anymore.  Schools that have been closed for COVID-19 reasons will soon become closed for summer break, and summer care and camps may not be available leaving inadequate sources of care for employees’ children.  Whatever the reason may be, the Massachusetts Department of Unemployment Assistance (DUA), citing the Department of Labor’s (DOL) position, has made it clear: Employees who are offered suitable work and refuse the offer may be separated from employment and lose unemployment benefits.

Calling Employees Back?

The DUA recommends that the return to work job offer be in writing. (We recommend that it at least be confirmed in writing)  The offer should include the details of the offered, including return date, full-time/part-time, the wage, type of work, hours, general location, and conditions of the job.  Make it clear that a job is actually being offered— not just a possible return to work.  We also recommend a date by which the employee has to let you know if the employee will be returning.  If the employee doesn’t respond, follow up.  If an employee refuses the job offer, depending on the reason, the employee may be disqualified from receiving further unemployment benefits.

Reporting Employee’s Refusal of Job to DUA

The DUA has indicated it’s not going to turn a blind-eye to individuals who have the opportunity to work but chose not to do so.  It has let employers know that they should report an employee’s failure to return to the workplace by an email addressed to UIFraud@detma.org so that the DUA can determine whether to discontinue the individual’s benefits.  The following information should be sent to the DUA:

- The date the offer of work was made;
- The date the employee would have returned to work;
- A description of how the offer was directly communicated to the employee;
- Details about the work offered, including whether full-time/part-time, rate of pay, job/type of work;
- (If the work offered was not the same type of work previously performed, employers should also describe the former working conditions); and
- Reason for employee’s refusal (if given).

Based on those factors, the DUA will determine what to do about an employee’s benefits.

Generous Unemployment Benefits Not Permissible Reason to Reject Job Offer  

It is not disputed that some people are better off financially collecting unemployment than working.  Until at least July 25, 2020, Pandemic Unemployment Assistance (PUA) provides individuals collecting unemployment with an additional $600 per week above and beyond their normal entitlement.  And, there’s talk that PUA will be extended beyond its current expiration date.  In no uncertain terms, the DUA recently posted that employees who do not return to work because it benefits them financially to stay home may be terminated from employment and lose their unemployment benefits.  An employee may not refuse work because his or her unemployment benefits are higher than their previous wages.

Fear of COVID-19 May Not Be Enough to Stay out of Work

It appears that the general fear of being exposed to COVID-19, without more, is not considered a reasonable basis for refusing work.  However, the DUA may permit individuals who reasonably refuse to return to work due to an underlying medical condition, other risk factor, or for another COVID-19-related reason to continue collecting unemployment benefits.

Employers too must remember that if an employee refuses to return to work because they have a disability that prevents them from returning due to COVID-19 that the employer has a legal obligation to engage in an interactive dialogue to determine if there are any accommodations it could make, including a block leave of absence.

Regardless of the Reopening Phase your business falls within, you should start thinking about employee returns now, keeping in mind that it is likely that not everyone will return.  Regardless of the DUA’s decision regarding whether an individual who has rejected a job offer will continue to receive unemployment benefits, your company will have to decide whether to grant the employee some additional time off (even when you’re not required by law or policy to provide it) or whether to separate with the employee.  Does it make sense to restructure those positions that remain vacant due to a refusal to return?  Should you place a job ad now or downsize the department?  We strongly recommend you start thinking about staffing issues sooner rather than later.