Everyone has to play this one carefully, thanks to guidance from the SBA. An employer may want to rehire a laid-off employee to keep their numbers up and thus take advantage of the PPP loan forgiveness provision. Or it may simply be that the company is getting back on its feet and wants its staff back.
But the employee, thanks to temporarily boosted unemployment benefits, may actually be earning even more by not working, at least for a while, and may refuse to come back. However, if the company has made a bona fide written offer to the employee to come back at the same wages for the same hours, and the employee has refused, the company can exclude that employee from its employment calculations—it will not be penalized in forgiveness calculations. But any employees who turn down such an offer may make themselves ineligible for continued benefits.
Of course, the ADA is still in effect, so employers should be aware of the situation if an employee cannot return because of ADA issues or other leave programs.
The Bottom Line: Always consult a legal professional for advice before making any final decisions.
Posted September 2020 – Copyright 2020
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