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You’re finally back in business and you recall employees.  Some choose to stay home rather than return to work.  Now what?

Article provided by McDonald Carano Law Firm. Author; Lindsay Knox

The COVID-19 pandemic has crippled the Nevada economy and left many businesses closed and Nevadans struggling financially. As state officials began to see unemployment numbers increase, the Governor waived the eligibility requirement to seek employment and the federal government provided an additional $600 per week on top of state unemployment benefits. Now, as businesses reopen, they are confronted with an unsettling amount of uncertainty and unforeseen consequences of those policy decisions. One of the pressing questions for many businesses is, what if an employee refuses to come back to work?
First and foremost, it is imperative to communicate with and educate employees with respect to the safety measures the business has implemented, which should follow the Governor’s Directives, Nevada OSHA, the CDC and local government requirements. Second, employers must understand why an employee does not want to reenter the workforce. When having discussions with employees it is important to understand if the individual has any constraints that would prohibit them from reentering the workplace such as underlying health condition or lack of childcare, each of which could entitle the employee to certain legal rights depending upon the circumstances. For the individuals who refuses to come to work without good reason, it is important to clarify that they are not eligible for unemployment benefits and, even if they were, the additional $600 per week from the federal government ends on July 31, 2020.
On June 5, 2020, the President signed the Paycheck Protection Program Flexibility Act, which relaxes PPP loan requirements as follows:
• Instead of 75%, an employer’s now need only spend at least 60% of PPP loan proceeds on payroll costs in order to obtain full forgiveness
• Employers now have until December 31 instead of June 30, 2020 to re-hire laid off workers in order to obtain full forgiveness
• New PPP loans now have a 5-year instead of a 2-year maturity date, but previously disbursed loans still have a 2-year maturity
• PPP borrowers who obtain forgiveness are permitted to defer payroll taxes
It is important to consider potential incentives when bringing employees back to the workplace. If a business has received the PPP loan or is in a financial position to do, it may consider a temporary increase in pay, bonuses, hazard pay, or additional paid or unpaid leave. If a business makes the decision to incentivize employees to return it is imperative that employees be treated equally such that all employees, at least those within a certain job position, receive the same benefit and an end date of the incentives. Should an employee nonetheless refuse to return to work despite an employer’s good faith effort to re-hire the employee or recall the employee from furlough, with or without additional incentives, the good news is that PPP loan forgiveness guidelines will not penalize an employer if the headcount falters for this reason, as long as the employer documents these decisions.
The Nevada Department of Employment Training and Rehabilitation (DETR) regulates Nevada’s unemployment insurance benefits. While the Governor has temporarily waived the work search requirement, DETR still requires that an employee must be “ready, willing, and able” to work in order to be eligible for unemployment. Through DETR, employers can file a complaint about an employee that refuses to come back to work without a legitimate reason because this individual is not willing to work. This is an option some businesses may consider, and for those that wish to take this step, it is important for the employer to explain to the employee the ramifications of refusing to come back to work. If the complaint is found valid the employee could be forced to re-pay the unemployment benefits, they received back to the state as it is a case of fraud.
To file a complaint with DETR, email their Business Service Office at JOBBANKMPKWY@detr.nv.gov with the subject line “Work Refusals” and include the following information:
• Employer Information -name, address, employer account number and contact person
• Full name and the last 4 of the SSN of the employee
• Date the employee was contacted and advised of a return to work date
• Reason employee gave for not being able to return to work