CLIENT ALERT: DDOL Issues Return-to-Work Guidance

As Delaware businesses plan for reopening, the Delaware Department of Labor (“DDOL”) has issued timely guidance on recalling employees after temporary layoffs. Read on for a summary of the information employers need to know when an employee refuses to return to the workplace.

• Once we decide to reopen, how should we communicate to employees that work is available again?

Simply announcing that the business is reopening is not enough. Each employee needs to receive individual notice of the ability to return to work. The DDOL recommends that employers provide a written return-to-work offer to each employee. The offer should specify the position, salary, benefits, and hours and whether these terms are the same as those the employee enjoyed prior to the furlough.

Employees who receive an offer to return to work at reduced pay or for reduced hours may be entitled to continue receiving unemployment benefits. Employees are expected to report the offer of work to the DDOL, at which time the DDOL will determine whether the employee is entitled to refuse the work as not “suitable.” In this fact-specific inquiry, the DDOL typically considers whether the pay, hours, or other conditions of the offered employment are substantially less favorable than those prevailing for similar work in the geographical area.

• What if an employee refuses to return to work?

When an employee refuses to return to work despite being offered regular work at the same hours and rate of pay that the employee received prior to the furlough, then the DDOL encourages the employer to report the employee’s refusal to return to work using an online form. The DDOL may consider the employee ineligible to receive continued unemployment compensation unless the employee can demonstrate good cause for the refusal or satisfies the eligibility requirements for expanded Pandemic Unemployment Assistance benefits. An employee who attempts to continue receiving benefits despite having work available simply because the employee can earn more collecting benefits than working will be deemed to be engaging in fraud.

Importantly, however, an employer’s response to an employee’s refusal to work must consider the employee’s reasons for refusing to return to work. Employers must engage in a dialogue with the employee to discover why the employee is reluctant to return to the workplace. Although the DDOL does not view a general fear of exposure to COVID-19 as a valid reason to refuse to work, there may be disability or high risk-related reasons that an employee cannot return to the workplace in the current pandemic environment. The DDOL encourages employers to engage in an interactive process with employees to determine whether accommodations can be made to address the employee’s concerns. The DDOL directs employers to COVID-19 guidance from the Equal Employment Opportunity Commission (“EEOC”).

• What must we do to ensure a safe workplace?

Employers have a responsibility to maintain a safe workplace. The DDOL expects employers to be able to demonstrate “good faith efforts” to comply with COVID-19 workplace safety guidance issued by Governor Carney, the Occupational Safety and Health Administration (“OSHA”), the U.S. Centers for Disease Control, and any applicable industry-specific guidance. For example, employers must conduct a hazard assessment of the workplace, screen employees for symptoms, enforce social distancing, improve air circulation, and require face masks “if appropriate.” Compliance assistance, including OSHA consultations, is available from the DDOL.

• Must we continue to allow telecommuting?

The DDOL encourages employers to continue to allow telecommuting wherever possible, but states that employers are not required to do so. Bear in mind, however, that, although telework is not necessarily appropriate for all positions, it should at least be considered as a possible accommodation for disabled or high-risk employees who have been cautioned against returning to the workplace.

The DDOL’s full guidance, including an FAQ for employees, is available here. For assistance with navigating the challenging issues associated with reopening plans and reluctant employees, please contact the Labor and Employment team at Potter Anderson (Jennifer Gimler Brady, Kathleen Furey McDonough, or Jennifer Penberthy Buckley).

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