Here’s some news for California employers and employees wrestling with the question of how to return to work. Last week, California’s state agency in charge of administering unemployment benefits, the Employment Development Department (“EDD”), issued a new set of general guidance (here and here) regarding employees who refuse to return to work as businesses reopen across the state. Specifically, the EDD reiterated that individuals are disqualified for unemployment benefits if they refuse to accept “suitable” employment when offered.

What is a “suitable” offer of employment? Under California law, the EDD will consider whether the particular work is “suitable” in light of factors such as the degree of risk involved to the individual’s health and safety, and as a result whether the individual has “good cause” for refusing the work.  In the context of COVID-19, a “suitable” offer of employment is one in which an employer is complying with all state and federal safety regulations (e.g. those promulgated by OSHA and the CDC). If these governmental protocols are being met, laid-off or furloughed employees who do not have underlying health issues that may increase their susceptibility to COVID-19 may not have “good cause” to refuse to return to work and could be disqualified from receiving further unemployment benefits.

What about telework? Under the new EDD guidance, workers who do have “high risk” factors for COVID-19 could still lose their unemployment benefits if they turn down an employer’s offer to telework.

What about wage cuts? The new EDD guidance also threatens loss of  unemployment benefits for workers who refuse “suitable” offers of employment because the wages they are being offered are less than their current unemployment benefits. This part of the new guidance applies  so long as the offered wages are the “prevailing wage based on the individual’s particular skill or occupation.” 

Reporting to EDD. The new EDD guidance provides employers with different ways to inform the agency of an employee’s refusal to return to work including sending in a letter within 15 days from the date the job offer was turned down.

If you’re an employer or employee with questions about the new EDD guidance, or about other “return to work” issues, please contact Tricia Legittino at 310 579 9632 or tlegittino@fkks.comTiffany Caterina at 310 579 9620 or tcaterina@fkks.comWendy Stryker at 212 705 4838 or wstryker@fkks.com, or any other member of the Frankfurt Kurnit Employment or Litigation Groups.