This information was last updated on Wednesday, May 13 2020
As businesses receive loans to rehire workers and governments loosen restrictions on business operations, workers across Pennsylvania will face a hard dilemma about how to balance risks to their health and their livelihood with employers’ requests to return to work. While unemployment claims are considered on a case-by-case basis each week, you will likely be denied regular unemployment benefits if you refuse to return to work, unless you have a “good cause” reason for doing so.
- During the pandemic, good cause for not returning to work can include:
- Being at higher risk for severe COVID-19 related illness as defined by the U.S. Centers for Disease Control and Prevention (CDC);
- Living in a household with a person at high risk;
- Providing direct care for a high-risk person;
- Being asked to work at a worksite that does not follow guidelines published by the U.S. Department of Labor, the Pennsylvania Department of Labor and Industries, or Pennsylvania Department of Health without telework as an option.
Generally, if you have good cause to refuse an offer to return to work, you may remain eligible for unemployment benefits. This is not guaranteed, however, and a determination would be made by the State based on the specific facts of your case. There is always a risk that the State won’t see things your way and you may still lose benefits or get an overpayment.
Before refusing work you should inform the employer of any concerns, in writing if possible, and give them a chance to respond. If co-workers share similar concerns, you should act together as a group to address such concerns with your employer. By acting as a group, you and your co-workers will have greater legal protections against retaliation under the law. You should save all written communications with your employer for evidence.
If you are not working because you are on leave, on layoff, or have lost your job, see CLS’s flyer on health care options for yourself and your family.
Frequently Asked Questions About Returning to Work During Coronavirus
1) Before returning to work, I want to make sure that my employer is complying with health and safety laws. What should I do?
You should start a discussion with your employer about safety accommodations that would be needed in order for you to return to work. It’s best to put it in writing and to do it with one or more coworkers, see below for more on this.
Both the Occupational Safety and Health Administration (OSHA) and the CDC have issued guidance for businesses and employers to plan and respond to coronavirus. There is also additional OSHA guidance for specific industries, such as construction, manufacturing, and retail. In addition, the PA Health Secretary issued an Order on April 15, 2020 requiring the implementation of additional protective measures for critical workers of businesses that are authorized to maintain in-person operations during the coronavirus crisis. Your employer should be complying with the PA Health Secretary’s April 15 Order and following the recommendations of OSHA and the CDC.
Under the PA Health Secretary’s April 15, 2020 Order, your employer may be required to (among other things):
- Clean and disinfect high-touch areas;
- Provide masks to employees and require them to be worn at the worksite;
- Give employees access to regular handwashing with soap, hand sanitizer, and disinfectant wipes;
- Stagger employee work start and stop times;
- Provide sufficient space for employees to have breaks/meals;
- Conduct meetings and trainings virtually, if possible;
- Prohibit non-essential visitors from entering the premises of the business;
- If open to the public, limit occupancy, maintain social distancing requirements, install barriers at registers, encourage online ordering, and require that all customers wear masks while on the premises; and
- Establish additional protocols for cases in which the business has been exposed to a person who is a probable or confirmed case of coronavirus, including (but not limited to) temperature screenings.
Before accepting an offer to return to work, you can ask your employer to provide you with information about specific health and safety precautions being taken to protect workers and its compliance with the PA Health Secretary’s April 15, 2020 Order and the recommendations of OSHA and the CDC. If possible, you should consider talking to co-workers about these concerns and together sending a written request for this information to your employer. CLS can provide you with sample language to include in your written request. See CLS’s flyer on Workers’ Health and Safety During the COVID-19 Crisis for more information.
If your employer is not taking the required precautions, you should request action (in writing) from your employer to correct any identified hazards before agreeing to return to work. If your employer refuses to correct any identified hazards, you may have good cause to refuse to return to work and remain eligible for unemployment benefits. This determination would be made by the UC agency and depend on the specific facts of your case.
2) Do I have to return to work if I am pregnant or have a health condition that places me at higher risk if I am exposed to the coronavirus, or if I have a family member with a health condition that places them at higher risk if they are exposed to the coronavirus?
If you are pregnant or have a health condition that places you at higher risk if exposed to the coronavirus, or live with a high-risk family member, you should try to obtain a note from a health care provider that you (or a family member you live with) are especially vulnerable and at higher risk, and that your (or your family member’s) health care provider recommends that you stay home from work. You should also make your employer aware of this issue and request an accommodation (providing any available documentation). Example accommodations could be a delayed start date (so that you can remain on UC), telecommuting, or job-protected leave. If your employer refuses to accommodate you in order to provide a safe work environment, you may have good cause to refuse the job offer and you may remain eligible for unemployment compensation benefits. As discussed above, this determination would be made by the State and depend on the specific facts of your case.
Please know that businesses cannot unilaterally decide not to hire individuals who are over 65 or pregnant because of COVID-19 risks without running afoul of federal discrimination laws. Businesses can discuss concerns with those individuals and see if they wish to delay a return to work or if telecommuting would be an option, but the decision not to rehire because of age or pregnancy cannot be made by the employer.
3) What if I am not aware of any health or safety violations at my workplace and don’t have an underlying health condition that puts me at higher risk, but I just don’t feel safe returning to work right now?
Generally, worry about coronavirus is not a legal reason to refuse suitable work. If you refuse suitable work due to a general fear of contracting coronavirus, without good cause, you may no longer be eligible for unemployment benefits.
On the other hand, if you refuse to return to work because you (or a family member you live with) are at high risk of complications from the virus and your employer cannot make reasonable accommodations, or if you are being asked to return to work at reduced hours that result in you earning less than they did before the pandemic, UC staff would review those specific reasons and make determinations based on the facts of each case. In such situations, you may remain eligible for unemployment benefits.
No, your employer cannot make you return to work if you don’t have child care. If you lack child care due to coronavirus, you may have good reason to refuse an offer to return to work and may remain eligible for unemployment benefits. This determination would be made by the State and depend on the specific facts of your case.
Before refusing work, you should try to discuss the issue with your employer to see if there are any accommodations that can be made that would allow you to return to work, such as telecommuting or a modified schedule. Additionally, if you return to work you may be eligible for up to 12 weeks of partially-paid sick leave and expanded Family and Medical Leave (FMLA) as provided under the federal Families First Coronavirus Response Act (FFCRA). Workers in Philadelphia may be eligible for an additional 40 hours of paid sick leave if they are unable to work for this reason. See (CLS’s flyer on Paid Sick Leave Related to COVID-19 for more information.
Absent a legal requirement to do so, employers may consider providing employees with additional flexibility during this time, to permit them to address emergency and unexpected events that affect their ability to secure childcare. Such time off could be provided paid or unpaid.
5) My employer has asked me to return to work, but is reducing my pay. Can I refuse and still collect unemployment?
It depends. Generally, under existing law, you are required to accept “suitable work” or risk losing unemployment benefits. You may have good cause to turn down an offer of employment if the job is not suitable. A job may not be suitable if: wages have decreased, a full-time job has become part-time; or health benefits are being lost. There is no set formula on how much an employer can reduce your pay, it will depend on the specific facts of each case. The longer you have been out of work, the less likely you will be able to succeed by arguing that a job offer is not suitable.
Notably, under the federal Paycheck Protection Program (which provides small business loans that are eligible for forgiveness if used for payroll), employees must receive at least 75% of the average weekly pay they received for the first quarter of 2020 in order for the loan to be forgiven in full. If you are working six hours instead of eight, that is 75%, which is enough for the employers’ PPP loan to be forgiven in full. It is quite possible that a job with a 25% reduction under these circumstances will be found to be “suitable” for you, and your benefits could be cut off. But the higher the reduction, the less likely that the job will be “suitable.”
In any event, if you return to work at reduced hours you may still qualify for partial PA unemployment compensation benefits (and the additional $600 weekly Pandemic Unemployment Compensation benefit through July 31, 2020).
6) My employer has asked me to return to work but I am currently receiving more money through unemployment. Can I refuse and still collect unemployment?
Probably not. Many workers currently receiving UC or PUA plus the additional $600 per week in Pandemic Unemployment Compensation (PUC) may not want to return to a job where they will earn less than they are currently receiving in benefits. If you are offered work by your employer and refuse to accept it, without good cause, you may no longer be eligible for unemployment.
Before refusing a job offer from a former employer, you should carefully consider the risks:
- If you decline a suitable job offer, you may become ineligible for unemployment benefits—even if your employer is offering you less than you are currently receiving in unemployment benefits, or offers you work under less favorable compensation.
- The extra $600 in PUC is a temporary benefit that expires on July 31, 2020. After that, your unemployment benefits will return to the normal amount, which is likely less than your previous working income.
- If you turn down a suitable job offer your employer may hire someone else and you won’t have the option to come back to your job later. Eventually your unemployment benefits will expire and you’ll need to find new employment, along with millions of other people.
If you do return to work at reduced hours, and this results in a reduced weekly income compared to your weekly income prior to filing for UC, you may be eligible for partial UC plus the $600 PUC per week.
These issues are complicated. Do you have questions or need help negotiating with your employer?
CLS may be able to help. Call 215-981-3700 and leave a message that you would like help with an employment case.