When Gov. Phil Murphy shared his plans to reopen the state, New Jersey workers wondered what it would mean for their jobs.
While essential workers have been on the job throughout the coronavirus crisis, non-essential businesses have been closed. Some have had employees working at home, while others used furloughs and layoffs.
So if your boss calls and says it’s time to come back to work, what happens if you don’t want to go?
There are many reasons some workers may not be ready to return to their workplaces.
The most obvious is safety. Even if an employer offers personal protective gear and social distancing at the office, no amount of hand sanitizer can guarantee COVID-19 won’t make its way in.
Whatever an employee is exposed to at work could come home with them to potentially infect their family members. Imagine a worker with an at-risk spouse. An elderly parent.
Then there’s the child care issue. School is out for the rest of the year and there’s no timeframe for reopening day care facilities. The fate of summer camps is unknown. Who will watch the kids if parents go back to the office?
Many employers are going to re-open slowly and are likely to be very understanding for employees. But for businesses to get back on their feet, they’re going to need their workforce. And those who received loans from the Paycheck Protection Program must use 75% of the funds to pay employees for the loans to be forgivable.
CAN I GET UNEMPLOYMENT?
Pre-coronavirus, workers who quit jobs were not eligible for unemployment benefits. But the Pandemic Unemployment Assistance (PUA) program opens up the scenarios under which typically ineligible workers can get benefits.
According to the Department of Labor’s website, the way you answer questions when you certify benefits — and you must answer honestly — will determine your eligibility.
The first question asks: Were you able and available for work?
The website says you should answer yes if you were able to work but “you lost your job/hours due to your own coronavirus illness, your need to care for a family/household member with coronavirus, or your employment situation changed because of coronavirus public health emergency.”
The second question asks if you are actively seeking work. You should answer yes if you are waiting to be recalled to your present job or you are delaying your job search until the coronavirus pandemic subsides.
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The third question asks if you refused any work.
The website says: “If you refused an offer of work due to concerns related to the travel/stay-at-home restrictions of the coronavirus pandemic, or because you were ill with coronavirus, or because you wouldn’t be able to care for a coronavirus-affected family member, or care for a dependent whose place of care or school is closed because of coronavirus, you should answer NO.”
These items would make it seem that unemployment benefits would be available to you if you refused to return to work. But it’s not a sure thing.
“These certification instructions do appear to indicate that the N.J. Department of Labor will consider certain cases where a worker who refused work as eligible for unemployment,” said Alex Lee, an attorney with Einhorn, Barbarito, Frost & Botwinick in Denville. “However, as these certification instructions are for already approved benefits that have passed the scrutiny of an examiner, it should not be relied on as a conclusive basis that voluntary quits will broadly be accepted as eligible.”
WORKPLACE SAFETY CONCERNS
Lee said there are no clear cut answers as to whether workers will be able to rely on unemployment benefits if they voluntarily resign or refuse to return to work because of their fears about the virus.
While the CARES Act includes language stating that workers can get benefits if they quit their job “as a direct result of COVID-19,” this language is ambiguous and the discretion to interpret it has largely been left to individual states, Lee said.
“The U.S. Department of Labor has issued limited guidance stating that a general fear of exposure to COVID-19 is not a valid basis for eligibility, but has also noted that such circumstances are not always clear cut, particularly when factors including the existence of specific and credible health concerns relating to COVID-19 are at issue and could provide a basis for eligibility,” Lee said, noting the N.J. Department of Labor has not issued detailed guidance on the issue.
As a result, he said, these types of cases will probably be handled on a case-by-case basis to determine if there are specific individual factors that show some form of greater-than-average health risks beyond a general fear of exposure.
“However, once a determination is made to approve benefits, future claw back concerns should not be a major concern as long as the information provided is accurate, and provided in good faith,” he said.
WHAT IF MY EMPLOYER FIGHTS MY APPLICATION?
In cases where there is a dispute between a worker and an employer, the claims examiner will probably make a determination based on the facts of each specific case.
The first thing a worker should do is try to talk to their bosses and see what they can resolve in terms of PPE, social distancing and alternative scheduling.
“If this is unsuccessful and the worker still feels that they have no choice but to resign, they should document their attempts to resolve their concerns before they make any decision to resign and file for unemployment benefits,” Lee said. “Workers must make all efforts to demonstrate that their concerns were serious, legitimate, and not simply for the purpose of obtaining benefits.”
WHAT PROOF DO I NEED?
As the economy comes back and non-essential businesses begin to open their doors, workers who refuse to go back to their jobs may need to prove that they needed to stay home.
Lee said to continue receiving benefits, workers will need to certify that they are still eligible, including showing that they did not refuse any offer of work.
“If the workers have received and refused an offer of work, in order to continue benefits, they will need to demonstrate some specific and substantiated reason for refusing work other than just a general fear of exposure,” Lee said. “This will likely require some proof or documentation, which will likely need to be medical documentation, including possibly a self-quarantine recommendation by a physician.”
To make the issue more confusing, the Labor Department’s guidance tells workers to answer “no” to the question about whether they refused an offer to work because of the virus.
CLAWBACKS AND FRAUD
Even if you do receive unemployment benefits, if the Labor Department later determines a mistake was made, you will be responsible for repaying the money — even if the error was not yours.
And the agency takes fraud very seriously.
If you commit fraud, the agency said, you may face criminal prosecution and imprisonment; incur severe fines and penalties; your state or federal income tax refunds may be garnished to satisfy any money owed; you can be denied unemployment benefits in the future, and; you must repay the benefits you received — plus interest and penalties.
Also keep in mind that the expanded $600 benefit, while retroactive, runs out at the end of July. Unless the federal government expands benefits further, those who are still collecting unemployment by then will take in a much smaller benefit for the months that follow.
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Karin Price Mueller may be reached at firstname.lastname@example.org.