23 Feb NOTICE TO EMPLOYERS ON HOW TO REPORT A REFUSAL OF WORK
The Michigan Employment Security Act, Coronavirus Aid, Relief, and Economic Security (CARES) Act, and the Continued Assistance Act (CAA) require individuals collecting unemployment insurance benefits to be available for suitable work and accept an offer of suitable work. In situations where an employer makes a bona fide offer of work to an employee or to return to their customary employment, the employee may lose unemployment benefits if he or she refuses to return to suitable work without good cause.
Wages, workplace safety, and other factors are considered in determining whether work is “suitable.” Employers must follow current state and federal requirements and guidance to maintain a safe workplace in general and due to COVID-19 pandemic. This includes adhering to the following Michigan laws:
- Michigan Stay Home, Stay Safe Orders
- Michigan Occupational Safety and Health Administration (MiOSHA) guidelines
- Michigan Safe Start Plan
It is not considered suitable work if the employer is unable or unwilling to provide a safe workplace required by current state and federal law and guidance. The burden of proof is on the employer to prove that the workplace is safe and in compliance with appropriate workplace safety laws and guidelines.
Refusal of Suitable Work
The following criteria must be taken into consideration in determining whether the offered work is suitable:
- Claimant’s physical fitness for the job
- Degree of risk to the claimant’s health, safety, and morals
- Claimant’s prior training and work experience
- Length of the claimant’s unemployment
- Claimant’s prospects for securing work in his/her customary occupation
- Distance of work from claimant’s residence
- Claimant’s prior earnings
- Workplace safety conditions
An individual who refuses an offer of work that is determined to be suitable will be denied benefits if the pay rate for that work is at least 70% of the gross pay rate received immediately before becoming unemployed.
After collecting half (50%) of the worker’s entitled weeks, an unemployed worker must apply for, and accept work even if the work is outside of his or her past training and experience, or unsuitable as to the pay rate, as long as the pay is at least:
1. 120% of the individual’s weekly benefit amount (WBA);
2. The average wage for the particular work in the locality where the job is offered; and
3. The state minimum hourly wage (currently $9.65 an hour).
Good cause for refusing suitable work.
In general, employees who refuse suitable work without good cause can lose unemployment benefits. However, in accordance with current federal and state laws and guidance, workers may have good cause to refuse work in light of COVID-19 in the following situations:
- The individual’s normally available transportation is now unavailable.
- This includes, but is not limited to, if public transportation or ride-sharing services are reduced or eliminated due to COVID-19 or for another reason.
- For claimants receiving Pandemic Unemployment Assistance (PUA), the individual’s normally available transportation must be unavailable due to a quarantine related to COVID-19 only.
- The individual is under self-isolation or self-quarantine in response to elevated risk from COVID-19 due to being immune-compromised. Examples of high risk include but are not limited to:
- Older adults (age 65 and older), and those who are pregnant.
- Those with specific disease or chronic conditions such as cancer, heart disease, lung disease, chronic liver disease undergoing dialysis, severe obesity, diabetes, malnutrition, and certain genetic disorders.
- Those with specific medications or treatments such as steroids, chemotherapy, radiation therapy, dialysis, stem cell, bone marrow, or organ transplant.
- The individual or household member has displayed at least one of the principal symptoms of COVID-19, which include fever, atypical cough, and atypical shortness of breath.
- Individuals must either have a positive COVID-19 test, have a COVID-19 diagnosis from a medical professional, or be seeking a COVID-19 diagnosis.
- The individual has had contact in the last 14 days with someone with a confirmed diagnosis of COVID-19.
- Contact for the purposes of healthcare exposures is defined as follows:
- Being within approximately 6 feet (2 meters) of a person with COVID-19 for a prolonged period, without appropriate personal protective equipment consistent with Michigan Department of Health and Human Services (MDHHS) recommendations; or
- Having unprotected direct contact with infectious secretions or excretions of the patient (e.g., being coughed on, touching used tissues with a bare hand).
- Contact for the purposes of healthcare exposures is defined as follows:
- The individual recovered from COVID-19, but it caused medical complications temporarily rendering the individual unable to perform essential job duties.
- The individual is required to care for someone with a confirmed diagnosis of COVID-19.
- If an individual’s customary childcare is no longer available due to COVID-19, the individual must seek “reasonable” alternatives to childcare. If an individual cannot find “reasonable” alternatives to childcare, the individual may remain eligible for unemployment benefits. UIA will consider if alternative childcare is “reasonable” compared to the pre-COVID-19 childcare for an individual’s family. Factors for reasonableness of alternative childcare include:
- Whether the individual has documented attempts to secure alternative childcare. Examples include but are not limited to:
- Inquiries and/or applications to alternative provider.
- Availability of alternative childcare.
- Placement on a waitlist(s) for alternative childcare but cannot secure alternative childcare due to providers’ limitation on capacity.
- Distance from an individual’s home to pre-COVID-19 childcare compared to the distance from an individual’s home to alternative childcare.
- Cost of alternative childcare compared to pre-COVID-19 childcare. Reasonableness usually will not apply to the curriculum of childcare, absent a showing that a child requires a specific curriculum for a medically documented reason(s). For example, a child with special needs requires specific childcare arrangements.
- Reasonable childcare includes childcare operational and in compliance with Executive Orders and LARA requirements, including disaster relief childcare centers authorized by Executive Order.
- The individual has a family care responsibility as a result of COVID-19. This includes whether the individual must miss work either to take care of children if the school is closed, or if customary summer child-care arrangements are closed due to a government directive or COVID-19.
- The individual has a reasonable belief that the workplace is unsafe or not in compliance with state or federal safety guidance and law. If an employer claims that a workplace is “suitable” because it meets state and federal workplace safety requirements, the employee may still have “good cause” to refuse that work if the employee can establish that he or she has a reasonable belief that the workplace does not meet safety requirements. Merely being afraid to return to work is not good cause.
Reporting an Employee Refusing to Return to Work
Both employers and employees have an obligation to report offers and refusals of suitable work to the UIA. Employees should notify UIA during their biweekly certification if they have refused an offer of work.
If an employee refuses an offer of suitable work, the employer can notify UIA in one of the following ways:
- A new “Return to Work” link will be available in MiWAM to report a claimant’s “Refusal to Return to Work.” Visit www.michigan.gov/uia and log into your MiWAM account.
- The new “Report Refusal of Offer to Work/Return to Work” link will also be available at UIA Home Page at www.michigan.gov/uia.
Due to high call volumes, employers are encouraged to submit correspondence online. Employers should also review Fact Sheet # 144C, COVID-19: Unemployment Compensation Benefits Returning to Work and Refusal to Work – Information for Employers, for additional information on how to report, or submit a protest of, an employee’s refusal to work.
If an employer makes an offer of suitable work or to return to work that is refused, then the UIA will conduct fact-finding into the situation. If UIA finds that the employee did not have good cause to refuse work or to return to work, the employee will not be eligible for further unemployment benefits and may have to repay unemployment benefits already received. If UIA finds that the employee did have good cause to refuse to return to work, the employee will continue to be eligible for future unemployment benefits and will not have to pay back unemployment benefits.
When addressing refusal of work, UIA must ensure that the employer made a bona fide offer of work to the claimant. In determining whether there was a bona fide offer of work, the employer must have made a genuine offer of work, and the offer must have been successfully conveyed to the claimant, for example, by telephone, in person, by email, or by mail. The offer must also have been for a specific job and must have been available to the claimant. A record of the documented offer should be maintained and contain details, for example, job title and duties, starting pay, hours of work, location, compliance with state and federal law and guidance on workplace safety, etc. Providing a “sign up” sheet for workers to use in responding to a generalized offer is not sufficient to constitute a bona fide job offer to a specific worker.
If you have questions, visit www.michigan.gov/uia for tools and resources. You can also access your MiWAM account to chat with an agent Monday through Friday, 8:00 a.m. until 4:45 p.m. Visit our website for hours of operation. TTY service is available at 866-366-0004. You can also contact Customer Service at 1-866-500-0017, Monday through Friday, between the hours of 8:00 a.m. until 5:00 p.m.
Michigan Unemployment Insurance Agency