Understanding 'right to work refusals'
While things are far from business as usual, we are seeing a modest start to reopening across the state of Oregon.
Though Multnomah, Clackamas and Washington Counties have not entered phase one, and there is no date set, as of May 21, almost all other counties have begun the process.
At Better Business Bureau Northwest + Pacific, we advocate for the small business owner. That is whom we serve and have supported for more than a hundred years. We understand that it's these small businesses hurting the most amid COVID-19 and, therefore, are among the organizations most eager to open their doors and start transacting.
But we also know safety is the top priority, both for employees and customers. With hundreds of thousands of employees laid off or furloughed across the state, times are truly tough. Recent statistics show that Oregon's unemployment rate soared to 14.2% in April.
Though being out of work is never ideal, changes under the CARES Act have resulted in many workers making more money on unemployment than at their jobs. Going back to work might not seem attractive — at least not until things are more "normal."
With our ears to the ground, BBB has been listening to the concerns of these small business owners. One question we keep hearing is, "What do I do if my employee does not want to come back to work because they are making more money on unemployment?"
This is an issue many are bracing for, and as an employer, there is action you can take.
Federal law requires those on a temporary layoff related to the COVID-19 pandemic return to work when called back. Failure to do so when work is available could be considered a "refusal of work" and potentially disqualifies the claimant from continuing to receive unemployment insurance benefits.
In short, if there is work available and the employee declines, they forfeit their right to collect unemployment. Employers should report these refusals to their state unemployment division right away.
However, details will matter. Notice words like "could" and "potentially" in the previous paragraph. This is because the context of the situation will be assessed. Assuming your business has been allowed to reopen under Oregon's phased approach, is it indeed safe for your employee to return to your specific work environment? This is a relevant question.
Be ready to provide details regarding the dates the employee refused to work, what type of work was offered, how the work was offered, and by whom, as well as the reason given by the claimant for not accepting the work.
BBB cannot advise on what employers can and cannot do in this situation, nor can we advise what protocols employers can legally put in place as they reopen — such as taking temperatures, signing waivers, mandating masks at all times, etc.
What we can do is provide best practices — what we have seen and heard being done across the Northwest and what we believe to be general tips everyone should consider to create a safe work environment. Consider the following:
Implementing these types of safeguards will serve business owners well as they invite their employees to come back.
More information on when an employee is within their rights to refuse to come back to work due to "danger" can be found on the Occupational Safety and Health Administration website.
Please note, BBB does not handle employer-employee issues and we encourage all concerns be reported to the State of Oregon Employment Department.
Danielle Kane is the Portland Marketplace Manager for Better Business Bureau Northwest + Pacific. She can be reached at 503-833-2301.
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