May 4, 2020
One consequence of Governor Kemp’s announcement to incrementally reopen sectors of the economy is that some employees are resisting returning to work. Employee safety in the workplace amidst the COVID-19 pandemic should be a paramount consideration for employers looking to reopen their businesses. If the employer does not adequately respond to employee questions or concerns about their safety, it is not surprising that some employees will be hesitant to come back to work. However, other employees are resisting returning to work for an entirely different reason: the amount of federal and state unemployment compensation benefits has created a disincentive for them to reenter the workplace.
In the first week of April, more Georgians applied for unemployment benefits than the entire year of 2019. Over 22 million Americans are currently receiving benefits. In response, emergency rules adopted by the Georgia Department of Labor (GA DOL) include an expansion to the weekly earnings allowance. For example, beginning March 29, 2020, employees may earn up to $300 and still qualify for their weekly benefit amount. In combination with the extra $600 received from federal funding, some employees earn more money while receiving benefits than they will make in returning to their regular job. This is especially true in some industries where, due to social distancing recommendations, capacity will be significantly reduced, like in restaurants, salons, and retail stores.
So, what happens if an employee declines their employer’s offer to return to work? The U.S. Department of Labor (US DOL) has made it clear that employees’ hesitations must be balanced with the purpose of unemployment subsidies. Individuals are only entitled to benefits if they are no longer working through no fault of their own and they are able and available to work. In guidance released in early April, the US DOL reminded the public that quitting work without “good cause” to obtain unemployment compensation benefits is fraud. In fact, the federal CARES Act, passed in late March, includes an appropriation of $26 million to carry out audits and investigations of fraud. “Good cause” reasons for quitting include being infected with COVID-19, having a family member who is infected, or having to care for a child whose school is closed due to the pandemic. (These reasons may also qualify an employee for leave under the Families First Coronavirus Response Act).
On the other hand, if an employee is terminated for failure to work scheduled hours, the employee may lose their unemployment benefits for being at fault in their separation. The GA DOL has specifically stated that if an employee decides to stay at home for fear of exposure to COVID-19, eligibility for benefits will be determined on a case-by-case basis and the employee must file their own claim. That said, Georgia Labor Commissioner Mark Butler has encouraged employers to work with employees to determine a successful return-to-work plan. This may include a modified schedule while the business gets up and running again. In such circumstances, employees can work modified hours and still receive some unemployment benefits.
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