Memorandum Regarding Unemployment Benefits When Employee Fails and/or Refuses to Come to Work

Question: My business employs critical infrastructure workers, workers who are necessary to sustain or protect life, or workers who are necessary to conduct minimum basic business operations. I have not laid off my employee, but the employee has failed and/or refused to come in to work. Will this employee be eligible for unemployment benefits?

Answer: It depends.

Generally, and prior to the Covid-19 Pandemic, when a Michigan employee fails or refuses to report to work, the Michigan Unemployment Agency determines that the employee has left their employment voluntarily. Employees who leave their employment voluntarily generally do not qualify for Michigan unemployment insurance benefits. Generally speaking, unemployment benefits in Michigan are provided to those employees who were separated from their employment involuntarily or through no fault of their own.

However, on March 25, 2020, Governor Gretchen Whitmer signed Executive Order 2020-24 regarding the temporary expansion of unemployment eligibility and cost-sharing. This executive Order temporarily changes the definition regarding when an individual has left work “voluntarily.”

Executive Order 2020-24 (1)(a) provides that an employee must be considered to have left involuntarily for medical reasons under the following circumstances:

• If they leave work because of self-isolation or self-quarantine in response to elevated risk from Covid-19 due to being immuno-compromised;

• If they display symptoms of Covid-19;

• If they were in contact within 14 days with someone with a diagnosis of Covid-19

• If they need to care for someone with a diagnosis of Covid-19; or

• If they have a family care responsibility as a result of a government directive.

Executive Order 2020-24(1)(b) provides that employees may be deemed laid off if they become unemployed because of the reasons outlined above. Likewise, section 2 provides that employees on a leave of absence due to any of the above outlined reasons must be considered to be unemployed unless the employee was already on sick leave or receives a disability benefit.

Employees have 28 days from the last day worked to file for unemployment benefits. The requirement to search for work is temporarily suspended.

Any benefit paid to a claimant that is laid off or placed on a leave of absence pursuant to Executive Order 2020-24 will not be charged to the employer’s account. Instead, benefits will be charged to the Unemployment Insurance Agency’s non-chargeable account.

If an employee fails and/or refuses to come to work, and it is not because of one of the above outlined reasons as articulated in Executive Order 2020-24, the employee may be disqualified for unemployment benefits under the voluntary leaving provision. The decision regarding eligibility for unemployment benefits is determined by the Michigan Unemployment Insurance Agency.

If you have questions regarding Michigan Unemployment Insurance Benefits, contact Attorney Nancy K. Chinonis, nchinonis@ccglawyers.com.