As Unemployment Claims Surge, The Ohio Department of Jobs and Family Services Urges Employers to Report Employees Who Refuse to Return to Work

By Tiffany S. Henderson*

Ohio businesses have started to reopen and to recall employees back to work under Governor DeWine’s Responsible RestartOhio Plan, However, some employees have refused to return, including employees who receive unemployment benefits.

On May 3, 2020, The Ohio Department of Jobs and Family Services (“ODJFS”) asked employers to report employees who refuse to return to work. Generally, Ohio law does not provide unemployment benefits for employees who quit without just cause or refuse employment offers. By extension, ODJFS likely will find those employees who refuse to return to work ineligible to receive unemployment benefits.

ODJFS developed an easy to use online form employers can use to report those employees who refuse to return to work. Employers can access that form here. With claims for unemployment benefits skyrocketing recently due to the COVID-19 pandemic, ODJFS will likely take a hard line on employees who refuse to return to work without proper justification.

When completing the online form, ODJFS requires employers to provide information concerning:

• whether the employer’s business is essential and if not what date the business opened;
• whether the employee refused to return to work;
• whether the work was the same as the employee’s pre-COVID-19 work;
• the nature of the work; and,
• whether the employer maintains the health and safety standards required by the Stay Safe Ohio Order.

Due to these requirements, employers should ensure that they are following the guidelines of the Stay Safe Ohio Order before making such reports. Further, employers should consider providing employees with advance notice prior to notifying ODJFS when employees fail to return to work and must consider whether the employee cannot return to work due to his/her medical condition or to care for others.

Z&R has developed form policies, request forms and other guidance documents related to COVID-19 issues. Z&R will continue to monitor the latest information governing employers. Previous Z&R articles addressing employer requirements and considerations during the COVID-19 pandemic can be found here:

• EEOC Allows Employers to Test Employees for COVID-19 before Resuming Work
• Coronavirus Considerations for Employers
• Ohio Provides Some Cover for Employers and Employees in Wake of COVID-19
• Federal COVID-19 response mandates paid leave (for now)
• Application of the Worker Adjustment and Retraining Notification Act (“WARN”) to Closures Caused by the COVID-19 Pandemic
• Ohio BWC: Allows Deferment of Premium Payments and Addresses Compensability of Contracting COVID-19
• Ohio Department of Insurance Provides Coverage Flexibility for Ohio Employees in the Wake of COVID-19
• FLSA Implications for Employers Considering Reductions in Pay
• Ohio Legislature Passes Emergency COVID-19 Response Legislation
• U.S. Department of Labor Issues Families First Coronavirus Response Act Model Notice
• Loans, Unemployment Assistance, and Other Relief Under the CARES Act
• U.S. Secretary of Labor Releases Temporary Rules Implementing The Emergency Family and Medical Leave Expansion Act and The Emergency Paid Sick Leave Act
• CORONAVIRUS TESTING: The Equal Employment Opportunity Commission Says Employers May Test Employees for COVID-19 Before Allowing Them to Work
• SharedWork Ohio: An Alternative Option to Employer Layoffs Made Even More Attractive by the CARES Act

*Tiffany S. Henderson practices in all areas of labor and employment law. If you have questions regarding COVID-19 and your workforce, please contact Tiffany at tsh@zrlaw.com or 216-696-4441.

SharedWork Ohio: An Alternative Option to Employer Layoffs Made Even More Attractive by the CARES Act

By Ryan Spitzer*

SharedWork Ohio, a seldom utilized state program in existence since 2013, could add yet another tool to an Employer’s tool belt that faces tough employment decisions in light of COVID-19.

SharedWork Ohio is a voluntary layoff aversion program that allows employers to reduce an employee’s hours between 10% percent to 50% percent each week. Once an employer has its plan approved by the Ohio Department of Job and Family Services (“JFS”), an employee works reduced hours and JFS provides the employee an unemployment benefit.

SharedWork Ohio allows employers to maintain their workforce, saving employers money by not having to recruit, train, and hire new workers.

SharedWork Ohio is open to private “contributory” employers as well as public sector “reimbursing” employers. All positions are eligible for SharedWork Ohio with the exception of employees who are seasonal, temporary, or employed on an intermittent basis.

Employers have discretion to determine which employees comprise an “affected unit” as long as each unit has at least two employees. Full-time employees in each unit must work the same percentage after the reduction in hours. Because of this, it makes sense for employers to have multiple “affected units.”

Employers must apply to participate in SharedWork Ohio through JFS and certify a number of items. In particular, an employer must continue to provide preexisting health and retirement benefits to an employee as if no reduction had occurred or to the same extent as other employees not participating in the program.

An approved SharedWork plan can last for 52 weeks. However, an employer can terminate the plan by written notice to the director. This termination option provides flexibility to employers to terminate the SharedWork program when business “gets back to normal.”

Governor DeWine has removed the “waiting week” period under Ohio law. As a result, employees working an approved SharedWork program can receive benefits immediately.

What is the interplay between SharedWork Ohio and the CARES Act?

Under Section 2108 of the CARES Act, the federal government pays states an amount equal to 100% of the amount of short-time compensation paid under a short-time compensation program under the provision of the State law. A short-time compensation program is known as a work sharing or shared-work program which an employer can use as an alternative to layoffs when experiencing a reduction in work.

SharedWork Ohio qualifies as a short-time compensation plan under Section 2108 of the CARES Act. Therefore, private employers utilizing SharedWork Ohio may not be charged for any SharedWork compensation paid to individual employees as Section 2108 of the CARES Act provides that the federal government will reimburse the State for 100% percent of the compensation paid. JFS is awaiting confirmation that the federal government will also be reimbursing Ohio at 100% percent for public sector SharedWork benefit payments (at a minimum, public sector reimbursements will be 50% percent).

SharedWork Ohio employees can also receive the $600 Federal Pandemic Unemployment Compensation (“FPUC”) payments provided under Section 2104 of the CARES Act. The federal government funds the FPUC benefits. Any employee who is eligible to receive at least $1 in underlying state unemployment benefits for the claimed week can receive the FPUC weekly $600 supplement (until July 31, 2020) in addition to their state benefits.

In summary, employees under an approved SharedWork plan would receive:

(1) Wages from the employer for the employee’s hours worked (from 50-90% of the normal schedule);

(2) The employee’s SharedWork Ohio benefit amount;

(3) The $600 FPUC supplement under Section 2104 of the CARES Act (until July 31, 2020); and,

(4) The employee maintains their current level of benefits.

The cost to the employer is the employee’s wages for the hours worked and the employee’s benefits. Employers do not pay for an employee’s SharedWork benefit amount or the $600 FPUC supplement.

Currently, JFS has approved SharedWork program applications within the same week. Developing a SharedWork Ohio program may benefit employers and avoid otherwise unavoidable employee layoffs due to the impact from COVID-19.


*Ryan Spitzer, works in Z&R’s Columbus office, and regularly advises clients on all employment matters. If you have questions about SharedWork Ohio, the CARES Act, or changes Ohio’s unemployment compensation law as a result of COVID-19, please contact Ryan at rcs@zrlaw.com or (614) 224-4411.