Employees Refusing Work for Safety Reasons Might Get Unemployment

On July 21^st, 2020, the U.S. Department of Labor’s Employment and Training Administration office (ETA) released an advisory letter for employers containing frequently asked questions and answers surrounding the Coronavirus Aid, Relief, and Economic Security Act of 2020 (CARES Act or Act). The new guidance contains an instruction that an employee who refuses to work because of COVID-19 health or safety concerns still could be eligible under specific state law for unemployment insurance benefits (UI) that were already authorized under another provision of the Act — the Pandemic Unemployment Assistance program (PUA).

Background of the PUA

The PUA expires on December 31st, 2020, and provides up to 39 weeks of UI benefits to people not otherwise eligible for regular unemployment compensation (including independent contractors and self-employed individuals). Generally, to qualify for PUA benefits, an individual must be “otherwise able to work and available for work within the meaning of applicable state law, except the individual is unemployed, partially unemployed, or unable or unavailable to work” because of one of the COVID-19-related reasons set forth in the CARES Act. These reasons include when the person is:

1. ill from the virus;
2. unable to reach their place of employment because they are quarantined;
3. caring for a household member with the virus; or
4. the primary caregiver of a child who is at home due to a forced school closure.

Suitable Work Provisions

The ETA, however, does note that a person is considered “available for work under state law if the individual does not limit his or her availability for suitable work.” The word “suitable” is extremely important because, according to the ETA, numerous states have “suitable work” provisions “that consider work that unreasonably exposes an individual to safety risks to be unsuitable.” Due to that definition, if an individual refuses work “that unreasonably exposes him or her to COVID-19” under state rules, the individual is still deemed to be available for “suitable” work and is not disqualified from receiving unemployment compensation, including PUA benefits. The ETA also advises that an otherwise eligible individual may be entitled to PUA “if he or she were to refuse work that would be considered suitable under state law, but turned the work down for ‘good cause’ under state law.” The ETA, however, does not offer a definition of the term “good cause,” leaving it to be defined in applicable state laws and regulations.

PUA Eligibility

In the new guidance, the ETA also clarifies that an individual who becomes unemployed for reasons unrelated to COVID-19, but cannot find another job because businesses are either closed or not hiring as a result of the COVID-19 pandemic, is not eligible for PUA benefits for that reason. To receive PUA benefits, the person would need to qualify for one of the four circumstances described earlier in this post, not including COVID-19’s general effect on the labor market.