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HR ALERT: Furloughed Employees Must Return to Work When Recalled

As we advance through phases of reopening businesses, employers who temporarily laid off or furloughed employees may be ready to recall those employees to work. Many employees are eager to return to their pre-COVID-19 jobs and schedules; however, some may resist returning to the workplace.

The Arkansas Division of Workforce Services (DWS) issued guidance this week regarding an employee’s refusal of an offer to return to work. If a temporarily laid off or furloughed employee is called back to work and offered his or her normal rate of pay and number of hours per week, that employee must not refuse the offer of work. If the employee refuses the offer to return, the employer may terminate his or her employment, and the terminated employee may lose eligibility for unemployment benefits and may be required to repay certain benefits.

Employers must report any employee’s refusal to return to work to DWS by mailing a letter to their local office or sending an email to UI.General.Questions@arkansas.gov, including the employee’s name and the last four digits of his or her Social Security number.

Despite the DWS’s guidance, the Americans with Disabilities Act (ADA) may protect some employees who are not willing to return to work. Specifically, if an employee refuses to return to work due to an impairment that may qualify as a disability, the employer may be obligated to provide the employee with a reasonable accommodation under the ADA. For example, if an employee has a compromised immune system that increases the risk of contracting COVID-19 in a communal workspace, that employee might request an accommodation to work from home. If an employer can provide an accommodation without undue hardship, it should consider doing so.

Additionally, employees of most public employers and private employers with fewer than 500 employees may be eligible for leave under the Families First Coronavirus Response Act (FFCRA) which entitles employees to paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The FFCRA does not apply to temporarily laid off or furloughed employees, but it does apply once employees return to work.

Contact an attorney with our Firm to discuss termination of employees who refuse to return when recalled or for guidance on navigating the reasonable accommodation process and leave requests as they relate to COVID-19.