Governor DeWine signed an executive order on June 16, 2020 that provides exceptions to the general rule that employees may not refuse to return to the workplace following a COVID-19 pandemic layoff or work-at-home situation. Employees with “good cause” may remain at home and refuse to work and still receive unemployment benefits. Good cause includes:
- Employee is over the age of 65;
- A medical professional’s recommendation that an individual not return to work because the individual falls into a category that is considered high risk for contracting COVID-19 by the Centers for Disease Control, and the employer cannot offer teleworking;
- Tangible evidence of a health or safety violation that does not allow the employee to practice social distancing, wear protective equipment, or practice appropriate hygiene;
- Employee has potentially been exposed to COVID-19 or has been prescribed a quarantine period by a healthcare professional; and
- Employee is staying home to care for a family member with COVID-19 or subject to a prescribed quarantine period by a healthcare professional.
Absent these “good cause” exceptions, an employee may not refuse an offer of “suitable work” and continue to receive unemployment benefits. Suitable work is any work that is consistent with the employee’s prior training and experience and need not be the same position as pre-pandemic.
It is unclear what constitutes “tangible evidence” of a health or safety violation. In addition, refusing to work due to COVID-19 related childcare issues or living with a high-risk household member are not included in the reasons to refuse to return to work.
Employers are free, however, to terminate any employee that refuses to work. This executive order does not affect a potential termination or require that the employer provide job protected or paid leave. This executive order only affects the eligibility for unemployment benefits. Employers should carefully consider the impact of the ADA, FMLA, CARES Act and FFCRA before taking any adverse employment action.