Can you refuse to go back to work and still claim unemployment benefits?

As states begin to lift stay-at-home orders, some of the first businesses to shut down in March to minimize the spread of coronavirus are now beginning to reopen their doors. Workers within the retail, restaurant, hospitality, service and meatpacking industries are getting calls from their employers that it’s time to get back to work.

But with coronavirus cases continuing to mount across the U.S., not everyone is ready to get back to life as normal. According to a survey from The Washington Post and the University of Maryland, 67% of Americans say they would be uncomfortable going into a store and 78% say they would be uncomfortable eating at a restaurant.

Further, more than 33 million Americans have filed for unemployment since mid-March, including workers who were furloughed but remain employees with their company, and workers who had their hours cut and qualified for partial unemployment.

These workers are eligible to receive boosted unemployment benefits under the coronavirus stimulus bill, which provides an additional $600 weekly federal benefit until July 31 and state-administered aid for up to 39 weeks. The New York Times estimates workers in more than half of states will receive more in unemployment benefits than they did from their normal salaries.

Now that people are being told to return to work, do they have to go? And how does that decision impact their unemployment eligibility?

As businesses reopen, they must follow guidelines from the Centers for Disease Control and Prevention intended to protect employees. Employers have the baseline responsibility of providing proper hand-washing stations, additional sanitation and personal protective equipment such as masks or gloves and following social distancing recommendations.

Certain states may also have more rigorous standards on top of federal guidelines, such as reducing workplace capacity or requiring temperature checks of employees. These measures will vary by locality, so workers should check their state department of labor for more details.

Employers who follow federal, state and local safety measures and call employees back to their former jobs will likely be recognized as providing “suitable work.” Workers cannot refuse suitable work and get any kind of unemployment benefits, says Michele Evermore, a senior policy analyst with the National Employment Law Project. They also can’t remain on unemployment simply because benefits pay them more than what they’d earn after returning to work. The Department of Labor Employment and Training Administration additionally makes it clear that a general fear of exposure to the virus isn’t enough to refuse work or quit your job.

If someone believes their employer isn’t putting in the effort to provide a safe working environment, “workers could argue that the conditions are no longer safe and try to refuse work in the first place instead of going in,” Evermore tells CNBC Make It.

She adds the National Employment Law Project has submitted proposals to the Employment and Training Administration to clarify how suitable work applies during the pandemic, so it’s possible more guidance will roll out as businesses reopen and workers are called back in the coming weeks.

“We anticipate they’ll come out with more clarity that will help workers be able to return to work only when it’s safe,” Evermore says.

An employer must also follow safety guidelines from the Occupational Safety and Health Administration, which predates the pandemic and outlines a worker’s right to refuse dangerous work.

If companies fail to follow those guidelines, and this creates a hazardous working condition, workers may be able to quit with good cause. If it’s found that a worker has left an employer due to unsafe working conditions under OSHA guidelines, they may be able to claim unemployment benefits. Many states have this stipulation in their unemployment insurance statutes, Evermore says, so workers should be able to find out more information on their state department of labor website.

In order to show good cause for quitting, workers will have to document specific reasons their workplace presents a hazardous environment and notify their employer of the need to eliminate the danger. If their employer doesn’t take action, workers may file a formal complaint with OSHA for investigation. OSHA-approved workplace safety programs vary by state, and the administration notes its latest guidance for handling coronavirus in the workplace creates no new legal obligations for employers.

“There are many whistleblower complaints being filed with OSHA for employees complaining about Covid-19 exposure issues,” says attorney Joshua Hawks-Ladds, chair of Pullman & Comley’s Labor, Employment Law and Employee Benefits Department. The firm, which operates across New England, has already worked on several cases to ensure employers are both putting in place proper protections for workers, as well as not retaliating when workers file a complaint about potential exposure risk.

You may also be able to turn down work and continue to qualify for unemployment if your employer drastically changes the way you do your job. This might include a drastic pay cut, permanent changes to your assigned shift without your agreement or moving you to a facility that would require a substantially longer commute. For example, in Iowa, a pay cut of 25% to 30% may justify a worker collecting unemployment if they choose to quit, but what’s considered a substantial change varies on a case-by-case basis.

Small changes however, like adding an extra hour to your shift or moving you to a different part of your facility, won’t count toward unsuitable work conditions.

It’s unclear whether tipped workers, like those in the food service industry, who come back to work with the same base pay but receive far less in tips due to decreased foot traffic will be able to argue that their pay has been cut. If your employer’s direct wages plus your earned tips add up to less than the federal minimum wage or the minimum wage in your state, your employer must make up the difference.

Importantly, Hawks-Ladds says it will ultimately be up to each state’s department of labor to determine if a worker leaves their job for a qualifying reason related to the coronavirus.

Changes may also apply differently to unionized workers. “If the terms and conditions of employment are impacting union members, members have a right to demand negotiations over those changes and seek a remedy,” Hawks-Ladds says.

The relief bill’s new Pandemic Unemployment Assistance (PUA) program dramatically expands the scope of workers who can receive benefits, including people who are unable or unavailable to work because of certain health or economic consequences of the pandemic, even if their workplace is open.

For example, you may qualify for PUA if you can’t work because you’ve been diagnosed with the virus; you’re directed by a health authority to quarantine; you’re providing care to a sick household member; you have to take care of a child at home while school or child-care facilities are shut down due to the pandemic; you have an underlying medical condition that prevents you from working; and so on.

Workers no longer eligible to receive traditional unemployment who have qualifying conditions can instead qualify for PUA, Evermore says. In such cases, workers may have to file a new unemployment claim altogether, or their state’s unemployment office may reassess an existing one in order to deliver benefits.

Individuals eligible for PUA benefits will receive their state unemployment aid for up to 39 weeks and an additional $600 per week until July 31. Expanded unemployment under the federal stimulus bill are currently in place through the end of the year.

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