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DOL Says Declining Job Because of COVID Safety Concerns Does not Disqualify for Federal Unemployment but Not Being Able to Get a Job Because Businesses are Not Hiring Due to COVID Does

posted Jul 30, 2020, 3:29 PM by Allison Ayer

After months of being closed under applicable state orders, many businesses have identified enhanced Federal unemployment benefits as one of the obstacles to reopening during the pandemic.  Some businesses say that their employees do not want to return because they are earning more in unemployment benefits than they would if they were working.  On July 21, 2020, the Employment and Training Administration office of the United States Department of Labor (“DOL”) issued new guidance answering two dozen questions about when employees may or may not be eligible for COVID-related Federal unemployment benefits.  Unfortunately, some of the answers may not be encouraging news for employers trying to get people back to work. 

Briefly, the new DOL guidance provides that individuals who became unemployed for reasons unrelated to COVID, but cannot find work now because businesses are not hiring because of the pandemic are NOT eligible for Federal unemployment benefits.  But individuals who refuse an offer of work due to legitimate COVID-related health and safety concerns MAY still be eligible for Federal unemployment benefits, depending on the particular facts and state law. 

               As background, the CARES Act was signed into law on March 27, 2020.  Part of the CARES Act created the temporary “pandemic unemployment assistance” (or PUA as it is sometimes referred) for people who were ineligible for regular unemployment compensation benefits and unemployed due to the COVID-19 reasons set forth in the CARES Act.  This Federal unemployment program was a critical lifeline for employees out of work during government shut downs.  But the program has also created great confusion about when people are eligible for the benefits as businesses try to reopen.  The DOL has already issued other advisories answering questions about eligibility and administration of the Federal unemployment program.  Here are some of the highlights of its recent July 21, 2020 guidance: 

               The DOL answered “No” to the question whether an individual is eligible for Federal unemployment benefits if he/she originally became unemployed for reasons unrelated to COVID-19, but is now unable to find work because of the pandemic.  The DOL said that an individual is only eligible for Federal unemployment benefits if the individual is otherwise able and available to work by reason of the COVID related reason listed in the CARES Act.   Not being able to find a job because some businesses have closed and/or may not be hiring due to coronavirus is not an identified reason. 

               On the other hand, the DOL said that individuals who refuse an offer to return to work because of legitimate safety concerns caused by COVID may continue to be eligible for Federal unemployment benefits under the CARES Act. 

Again, the DOL explained that to be eligible for Federal unemployment benefits, an individual must be otherwise able and available to work within the meaning of state law except that he/she is unemployed, unable or unavailable because of specific COVID-19 related reason in the CARES Act.  The DOL noted, however, that many states consider work that unreasonably exposes an individual to safety risks to be unsuitable.  Under these state law provisions, if an individual is offered and refuses work that unreasonably exposes him or her to COVID-19, the state may conclude that the work is not suitable. In that scenario, the individual may still be eligible for Federal unemployment benefits, if all other eligibility requirements are met.

The DOL also said in its recent guidance that an individual who is disqualified from regular unemployment compensation because of a prior resignation or termination may be eligible for CARES unemployment if the individual is currently unable or unavailable to work for a COVID-19 related reason listed in the CARES Act. 

               The DOL’s guidance also clarified that the CARES Act does not contain an age requirement for unemployment benefits.  That means that even minors are eligible for Federal unemployment.  The DOL noted that the CARES Act requires individuals to self-certify that they are otherwise able to work and available for work within the meaning of applicable state law, except to the extent unemployed or unable or available because of COVID-19 related reasons.  Most states, including New Hampshire, have restrictions on the hours, days and types of work minors may perform.  If these laws do not make it illegal to employ the individual, and the minor meets otherwise meets the state’s “able and available” for work requirements, the minor is eligible for Federal unemployment. 

               In sum, the availability of Federal unemployment benefits continues to create confusion and consternation for employers and states alike.  Many individuals are eligible for these benefits if they are legitimately not working because of COVID-19 or even if they refuse to return to work because of safety concerns related to COVID-19.  The current $600 Federal unemployment benefits are scheduled to end July 31, 2020.  However, Congress is expected to pass additional coronavirus relief, and all indications are that it will include Federal unemployment benefits.  The amount of the final benefit will undoubtedly be a source of considerable negotiation.  But, early proposals suggest Federal unemployment benefits of less than $600 in the next round of coronavirus legislation.  For businesses having trouble getting employees to return because the current benefits provide better pay than working, this may be much needed good news.    
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