Unfair Choices: Can Workers Refuse to Return If Their Workplaces Are Unsafe? 

Since the beginning of the SARS-CoV-2 pandemic, some workers have faced a gut-wrenching decision: stay at work and risk illness and death, or leave work and lose their job.  Although state and municipal orders closed many types of businesses to the public, and some workers have been able to transition to work at home, there have been a core set of workers—labeled “essential”—that have continued working throughout the crisis.  We have heard stories about healthcare workers, meatpacking plant employees, and warehouse workers whose employers remained open and in some cases failed to provide their employees with the necessary safety measures.  Too many of these front-line workers have died from COVID-19.  As states begin the process of lifting their stay-at-home orders, many more employees now must face the same choice: risk death or lose your job.  

If workers choose to stay home fearful of the novel coronavirus, are they entitled to unemployment compensation?  Perhaps.  Our system of unemployment insurance is a complicated and intertwined system that includes the federal government, state governments, and employers.  Like other federal programs such as Medicaid, the unemployment compensation system receives substantial funding from the federal government, which provides the overall legal framework.  However, individual states must enact their own programs with their own sets of rules and procedures.  Under state rules, workers must have been terminated from employment or must have left the job for “good cause.” The definition of good cause is generally fleshed out on a case-by-case basis, with state labor and employment agencies and courts deciding whether a particular claimant can show sufficient justification for leaving the job.  To be eligible for compensation, workers must additionally be able to work, available for work, and actively seeking work while unemployed. 

At the onset of the pandemic, the federal government took steps to broaden coverage of those workers who lost their jobs.  The Coronavirus Aid, Relief, and Economic Security (CARES) Act provided an additional $600 per week for individuals who were collecting regular unemployment compensation.  The Act also allowed states to provide compensation to workers whose benefits had been previously exhausted, and to extend benefits for all unemployed workers up to an additional 13 weeks beyond the standard 26-week timeframe.  The Federal Families First Coronavirus Relief Act (FFCRA) further asked states to temporarily loosen their requirements for providing compensation in order to receive additional federal funding.  The legislation makes clear that benefits should be extended to those who have been diagnosed with COVID-19, those who are caring for members of their household with COVID-19, and those whose businesses are closed because of the virus. 

Early on in the crisis, the Department of Labor emphasized that states should provide more flexibility in allowing claims due to the pandemic.  In its March 12 guidance, the Department reminded states of their flexibility in implementing the compensation requirements.  The guidance specifically provided that states may provide for unemployment compensation if an individual is quarantined by a medical professional or under government direction, or even if the worker self-quarantines due to risk of exposure or infection.  On March 22, the Department offered additional guidance for the states as to the interpretation of “good cause” to leave a job. 

Noting that states had statutory authority to temporarily amend their “good cause” provisions, the Department encouraged them to do so to align with efforts to combat the pandemic.  In particular, states could “include leaving work due to a reasonable risk of exposure or infection (i.e., self-quarantine) or to care for a family member affected by the virus.” 

 However, the tone has changed. On its webpage FAQs, the Department responds to a hypothetical question from someone whose employer has remained open but who quit because they were “afraid of getting coronavirus from customers coming to the store.”  The Department instructs: “voluntarily deciding to quit your job out of a general concern about exposure to COVID-19 does not make you eligible” for benefits.  Quitting out of fear of the virus is only an option for those who “have been advised by a healthcare provider to self-quarantine as a result of such concerns”—for example, “an individual whose immune system is compromised by virtue of a serious health condition.”  And in guidance issued on May 11, the Department of Labor warned states to “ensure the integrity of unemployment insurance programs” by detecting “waste and fraud” and reporting it to the Department’s Inspector General.  Yes, states had flexibility in setting eligibility requirements, but they could not let those requirements lapse.  Reminding states of their obligation to rigorously check their rolls, the Department stated: “States should expect significant oversight, review and scrutiny of their unemployment compensation programs’ integrity.”   

States have gotten the message.  As state officials have reopened certain segments of their economies, they have warned workers that they are guilty of fraud if they refuse to return to an open business but continue to collect unemployment insurance.  The Arkansas Secretary of Commerce said that if a worker refused to return to their job, “That’s a fraudulent claim for us, and we will be tracking that.”  The Alabama Labor Secretary said, “It’s important for workers to know that if their employer reopens or otherwise calls them back to work, they must do so, unless they have a good work-related cause for not returning.”  And the Iowa governor told employees that they won’t be eligible for unemployment benefits if they don’t come back to work, even if they’re concerned about contracting the coronavirus. Similar sentiments have been expressed by state officials in Georgia, New York, and Tennessee. 

Workers may ultimately be able to claim “good cause” to refuse to return if their workplaces are deemed unsafe.  States will generally interpret this exception based on the facts of the case, meaning that workers will not know ahead of time whether their claim for good cause is valid.  A claim has a greater chance of success if the employer is not following documented standards, such as the CDC guidelines for reopening businesses.  Federal law prohibits states from denying unemployment compensation if the “wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.”  (26 U.S.C. § 3304(a)(5)(B).)  So if a particular employer has conditions that are dramatically worse than other similar businesses, employees should have good cause to refuse to return. 

In addition, workers should inform their employers about concerns and should report unsafe conditions to the Occupational Safety and Health Administration (OSHA).  However, to this point hundreds of workers have filed OSHA complaints, and there is little evidence of enforcement.  The agency announced in April that on-site inspections would only occur for reports of coronavirus-related fatalities or threats of “imminent danger;” employers would be trusted to investigate other claims themselves. Although OSHA has provided a booklet with guidelines on managing coronavirus dangers, the AFL-CIO has sued OSHA demanding that the agency issue mandatory rules, rather than guidance.  If unsafe conditions put members of the public at risk, workers can also look to state and local public health officials for help. 

Although the decision to return to work will ultimately be an individual choice, workers should not be left on their own.  We need strong and clear guidance from federal and state officials on the appropriate safeguards for different types of workplaces.  And employees should have a role in deciding whether the business will reopen, and if so, what protections are in place for their safety.  Until we have confidence that employers and government officials are doing their utmost to reduce the spread of SARS-CoV-2 infections, states should interpret “good cause” to forego a return to work generously, giving workers the benefit of the doubt in protecting themselves.   Workers need to stay out of workplaces that would put them and their loved ones in jeopardy.   

Labor and Employment Law, Regulation and the Administrative State, Role of Regulatory Agencies, Worker Safety, Workers’ Rights