July 5, 2020

Volume X, Number 187

July 03, 2020

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Employees Who Refuse to Return to Work While Seeking Pandemic Unemployment Assistance

As state shut-down restrictions ease, employers may confront situations in which some employees resist a return to work because of COVID-19 fears. Other employees may have found that the additional $600 per week in federal benefits means that they are receiving more by remaining on unemployment than their normal paycheck would provide, offering an incentive to stay at home. This article addresses these issues, discussing recent and helpful federal guidance. 

Background

Section 2102 of the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act establishes Pandemic Unemployment Assistance (PUA). This program provides up to 39 weeks of unemployment benefits to qualified individuals who otherwise would not qualify for regular unemployment compensation (UC) under state or federal law, or who have exhausted all rights to regular UC. The CARES Act also establishes an emergency increase in unemployment compensation benefits, called Federal Pandemic Unemployment Compensation (FPUC), which provides an additional $600 per week to individuals who are collecting regular UC or PUA. 

U.S. Department of Labor Guidance

On April 27, 2020, the U.S. Department of Labor (DOL) issued Unemployment Insurance Program Letter No. 16-20, Pandemic Unemployment Assistance (PUA) Program Reporting Instructions and Questions and Answers, to state workforce agencies answering questions arising from implementation of the PUA program, including the additional FPUC benefit. This guidance supplements a prior Program Letter addressed to the same recipients.

This Program Letter Supplement (PLS) states that an employee who refuses to return to work when called back by the employer simply because the individual wishes to receive unemployment benefits is not eligible for PUA because he or she then is not unemployed for one of the qualifying COVID-19-related reasons listed in the CARES Act (see below). PLS Q&A No. 34. Moreover, an individual who refuses an offer of work is not eligible for PUA, again, unless the individual is unable to work as a direct result of COVID-19. PLS Q&A No. 34. 

In addition, the subjective fear of employees who refuse to return to work due to a general fear of exposure to the coronavirus does not render an individual eligible for PUA. PLS Q& A No. 50. 

With regard to this last category of employee, however, the DOL, in separate guidance addressed to employees directly, suggests a number of options for the fearful employee. 

The DOL advises that an individual may be eligible for PUA if he or she was diagnosed with COVID-19, and although the individual no longer has COVID-19, the illness caused health complications that render the individual objectively unable to perform his or her essential job functions, with or without a reasonable accommodation. Further, an individual whose immune system is compromised by virtue of a serious health condition, and who is therefore advised by a health care provider to self-quarantine in order to avoid the greater-than-average health risks that the individual might face if he or she were to become infected by the coronavirus, will be eligible for PUA if all other eligibility requirements are met. 

The DOL also advises that if an employee believes that his or her employer’s response to the possible spread of COVID-19 creates a serious safety hazard or if the employee thinks the employer is not following federal safety standards, the employee can file a complaint with the Occupational Safety and Health Administration (OSHA). 

Employer Options

Employers who have work – including telework – for employees and who wish to return individuals to the workforce should make it a clear written return to work offer. The employer should be prepared to explain any safety precautions that have been instituted in the workforce to help allay any generalized fear. Those individuals who refuse to return, or are hesitant, should be asked to explain their reluctance. These steps may assist the employer in opposing any application for PUA benefits and possibly the continuation of regular state unemployment.

Employers should keep in mind, however, that seeking to persuade employees to return to the workforce in these times may implicate multiple employment issues, including (1) alleged discrimination issues depending on who is and who is not asked to return, (2) potential disability accommodation issues, (3) federal or state law claims of retaliation for raising safety and health concerns, and (4) OSHA and even future tort and/or workers’ compensation risks. 

Finally, this article addresses federal guidance for receipt of PUA. State approaches in granting non-PUA unemployment benefits may differ. 

For all these reasons, qualified legal counsel should be sought before taking action. 

COVID-19-Related Reasons Listed in CARE Act Section 2102(A)(3)(A)(II)(I)
To be eligible for PUA, an individual must certify that he or she is unemployed, partially unemployed or unable/unavailable to work because of a CARES Act–listed COVID-19 reason.

The listed reasons are:

  1. The individual has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19 and seeking a medical diagnosis

  2. A member of the individual’s household has been diagnosed with COVID-19

  3. The individual is providing care for a family member or a member of the individual’s household who has been diagnosed with COVID-19

  4. A child or other person in the household for which the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and such school or facility care is required for the individual to work

  5. The individual is unable to reach the place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency

  6. The individual is unable to reach the place of employment because the individual has been advised by a health care provider to self-quarantine due to concerns related to COVID-19

  7. The individual was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of the COVID-19 public health emergency

  8. The individual has become the breadwinner or major support for a household because the head of the household has died as a direct result of COVID-19

  9. The individual has to quit his or her job as a direct result of COVID-19

  10. The individual’s place of employment is closed as a direct result of the COVID-19 public health emergency

  11. The individual meets any additional criteria established under the law.

© 2020 Wilson ElserNational Law Review, Volume X, Number 133

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About this Author

Kevin C. Donovan, Wilson Elser, Labor Disputes Lawyer, Wrongful Discharge Action Attorney,
Partner

Kevin Donovan concentrates his practice on all aspects of labor law and employment litigation and counseling, including certain employee health benefits issues facing employers. He represents clients at the trial and appellate levels as well as in administrative actions.  He has more than 30 years of labor and employment law experience representing employers of all sizes. Kevin also is an advocate for clients in emergent injunction actions involving union-management labor disputes and other employment matters, including the protection of intellectual property assets....

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