COVID-19: Can I Continue to Receive Unemployment if I Refuse to Return to Work?

COVID-19: Returning to Work

COVID-19: Can I Continue to Receive Unemployment if I Refuse to Return to Work?

Arizona is re-opening businesses following a lengthy Stay Home order caused by the COVID-19 virus. Many of these businesses include restaurants, retail stores, and hospitality services with extensive customer interaction. These businesses are now calling on their employees to come back to work but with the coronavirus cases continuing to increase, not every employee is ready to return due to safety concerns.

The Washington Post reports that 67% of Americans say they would be uncomfortable going into a store and 78% going into a restaurant. More than 33 million Americans have filed for unemployment. Many Arizonans filing for unemployment have been eligible to receive an extra $600 per week in benefits approved under the federal stimulus bill. This weekly federal supplement lasts through July of 2020. This supplement often results in recipients receiving more through unemployment than they received while working, potentially adding to their desire to remain on unemployment.

If the employer reopens, does an employee have to return? If they choose not to return, can they continue to receive these unemployment benefits?

What must your employer provide in order for you to return to work?

With businesses reopening, your employer should follow the state and federal guidelines, including guidelines released from the Arizona Governor’s Office and the Centers for Disease and Control Prevention, which are intended to protect employees. Your employer has the responsibility to provide a clean and safe workplace, including following social distancing protocols.

Your employer may be subject to rigorous standards such as reducing workplace capacity, requiring each employee to wear a mask, or to check their temperature. Of course, these requirements will vary, but as an employee you may want to check with the Arizona Department of Labor or an attorney for more details regarding guidelines for your specific type of workplace.

Employers who follow federal, state and local safety measures and call employees back to work will likely be recognized as providing “suitable work”. Workers may not refuse suitable work and continue to collect unemployment benefits. Employees also cannot remain on unemployment just because benefits pay more than their actual job. Unfortunately, a general fear of exposure to the virus is not enough to refuse to work or quit your job according to the US Department of Labor.

What if your employer is not providing safe working conditions?

If you believe your employer is not providing a safe working environment in compliance with state and federal regulations, you may argue that the conditions are no longer safe and attempt to refuse work instead of returning your workplace. Proposals are being submitted to the Employment Training Administration to clarify how suitable work applies during the virus. It is likely that additional or changes in guidance regarding appropriate safety measures may continue as businesses reopen. However, if you do feel your employer is not following guidelines, you may want to outline your specific concerns to you employer in an attempt to resolve the issue prior to refusing to return.

As an employer, you must follow safety guidelines from the Occupational Safety and Health Administration (“OSHA”) that predates the pandemic and outlines workers’ rights to refuse potentially dangerous work. If a company fails to follow safety guidelines and creates or allows an unsafe or hazardous working condition, employees may be able to quit with “good cause”. If it is found that a worker has left an employer due to unsafe working conditions under the OSHA guidelines, that worker may be eligible for unemployment benefits. Moreover, Arizona has a constructive discharge statute that employees may want to follow depending on the severity of their safety concerns.

To show good cause, workers must document reasons and they must be specific as to why their workplace presents a hazardous working environment and to notify their employer of the need to eliminate the hazards. If the employer does not take action, the worker may file a complaint to OSHA. OSHA has noted that its latest guidelines regarding the handling of coronavirus creates no new legal obligations for the employer.

What if your employer drastically changes your job without your consent?

If your employer drastically changes the way you do your job, you may be able to turn down work and continue to qualify for unemployment. This could include a major pay cut, permanent and drastic changes to your shifts without your consent or moving you to a facility that would require relocation. However, if your employer adds an extra hour to your shift or moves you to a different part of a facility, this is unlikely to amount to unsuitable work conditions.

If you are a server or bartender and earn a majority of your money from earning tips you may be able to argue that your 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 that difference. Ultimately however, it will be up to each states Department of Labor to determine if a worker leaves their job for a qualifying reason that is connected to the coronavirus.

How to qualify for pandemic unemployment assistance?

The Pandemic Unemployment Assistance (“PUA”) program expands the scope of workers who can receive benefits. You may qualify for the PUA if you cannot work due to you being diagnosed with the virus; you’re directed by a health authority to quarantine; you’re providing care to a sick member of your household; you have to take care of a child or children while schools and child care centers are shut down; you have an underlying medical condition that prevents you from working and so on.

If you are worker who no longer qualifies to receive traditional unemployment but still have qualifying conditions can instead qualify for PUA. In these cases, you as a worker may have to file a new unemployment claim or your states unemployment office may reassess an existing one in order to deliver benefits.

Those who are eligible for PUA benefits will receive their state unemployment aid for up to 39 weeks and an additional $600 per week until July 31st. Currently, expanded unemployment under the federal stimulus bill are in place through the end of the year. These benefits are constantly changing so be sure to investigate what benefits are currently open and available to you based on your situation.

If you have questions about employee rights and would like to schedule a consultation with an employment attorney, call us at 602-999-2908 or fill out the form on this page.