Q: My employee is making more compensation on unemployment right now and does not want to come back to work. What do I do?

A: There are a few things to consider, including the possibility that the employee cannot come back to work.

  1. Did you terminate or furlough the employee? There is more information below on this topic.
  2. Does your employee live in an area where the stay-at-home order is different from where s/he works?
  3. Is the employee caring for a child whose school or place of care-giving is closed?
  4. Is the employee caring for someone diagnosed with COVID-19?
  5. If you answered, “no” to questions 1 – 3, you should notify your state’s unemployment agency of the employment offer made to the employee. This should discontinue the eligibility for unemployment benefits because work is now available and you may communicate this with your employee so that s/he understands it is best to return to work. Employees in these situations that do not return to work may later find themselves repaying unemployment benefits.

Q: I’ve hired a new employee and s/he does not want to start. What can I do?

A: Is the position considered essential? If so, be prepared to tell him/her why the position is essential. If the position is essential, you may require the new employee to start as soon as possible or as soon as s/he concludes the resignation timeline from his/her last position. If desired, you may establish a cutoff date or rescind the offer. Please know, in the days of COVID-19, this decision may create a negative perception for incoming employees.

Is the position non-essential? Many will argue that being generous at this time is important for employees and how they will perceive you going forward. Below are a few things to consider.

  1. Is your establishment (KY) at 50% capacity? If so, you are at the max allowed at this time.
  2. Can the employee start by working remotely? Can the employee be trained remotely?
  3. Can you consider a rotating schedule wherein the employee works in the office and at home?
  4. If the answer is “no” to all of the above, please check your local/state guidelines, as you can more than likely require a new employee to report to work.

Q: I’m a small business owner. Do I have to follow eFMLA? Can I tell my employees they are required to return to work or be fired?

A: This is certainly a difficult situation and we recommend caution in disciplining or terminating an employee who refuses to come into work during a state/local shelter-in place order. Generally, employees do not have the right to refuse work based only on a generalized fear of becoming ill. However, in the times of COVID-19 it can be difficult for an employer to show that employees have no reason to fear coming into work.

With that said, let’s review eFMLA eligibility criteria.

  • The employer must have fewer than 500 employees.
  • The employer must have more than 50 employees.
  • The employee must have been employed for at least 30 days.
  • Telework is not an option.
  • The employee has a child whose child care is closed

If you fall into this criteria, you must allow employees to utilize the eFMLA benefit. If you do not meet these criteria, you may require an employee to return to work.

Q: An employee wants to use eFMLA because his child care location is closed. What does that mean for me, the employer and how long can they use the benefit?

A: eFMLA provides benefits for those employees whose child care/school is closed. Eligible employees may take off up to 12 weeks.

Please check with your local/state guidelines to determine when child care establishments will reopen. The state of Kentucky is allowing child care providers to reopen on June 15. Please note: This does not mean all child care providers will reopen on that date.

Q: Can I require an employee to return to work when school is officially closed?

A: There is nothing preventing you from requiring employees to return to work once child care providers are open and eFMLA is no longer an eligible benefit. Please keep in mind, some parents may want more time to ensure their children are safe before returning to work. This will be a discussion between you and each employee.

Q: Do we need to complete the normal rehire process for furloughed employees coming back to work?

A: We recommend you first send the employee a recall letter at least one week in advance of the return to work date. This will allow you, the employer, to understand the employee’s current situation.

At this time, the furlough is less than six (6) months. That means you do not need to recreate the new hire process for the employee – unless something has changed.

Q: Do we need to perform drug screenings for returning employees?

A: If the employee was furloughed, it is generally unnecessary to update pre-hire drug tests. If you want to do so, please first review your employment policy to ensure this action is allowed. However, this may be a requirement if your business and employees are required to follow the Department of Transportation (DOT) guidelines.

Q: Do we need to ask furloughed employees to complete another I9 when they come back?

A: Because furloughs are treated as a leave of absence, not termination, employers may continue to use the I9 completed at the beginning of employment.

Q: Do I have to help my employee find a doctor if s/he is running a fever above 100.4º?

A: No, but it may be helpful to remind them where they can find a list of healthcare providers within your benefit network. It wouldn’t hurt to remind them of any telehealth options that are available as well..

Q: What are the legal obligations in reopening my business?

A: Please check your local and state guidelines. We recommend you check these on a daily basis as new or changing guidelines are frequent.

Every situation is unique to the employer so it is best to contact your advisors before taking action based on such general information.

For more information on how the Coronavirus is impacting businesses, follow the link below.

COVID-19 Resources