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Return to work, or else
Each day, thousands of Americans are dying from the coronavirus, and tens of thousands of new cases are reported. Therapeutics that reduce mortality from COVID-19 are not yet available, and a vaccine is, optimistically, many months away. Nevertheless, dozens of states are relaxing regulations and reopening their economies.
But as businesses choose to open their doors, employees are being coerced to show up.
In Ohio, for example, "general office environments, manufacturing, distribution, construction" were permitted to open Monday. Retail and other businesses will be allowed to open next week.
Governor Mike DeWine (R) announced the move even as the virus continued to spread rapidly in the state.
Meanwhile, the Ohio Office of Unemployment Insurance has set up a dedicated website that allows employers "to report employees who quit or refuse work when it is available due to COVID-19." The purpose of the website is to allow the state to cut off unemployment benefits for people who refuse to return to their job because they are afraid of contracting the coronavirus. In other words, people with legitimate concerns about becoming ill — or infecting vulnerable family members — will have to choose between reporting to work and losing all of their income.
Workers who decide to stay home would lose not only their Ohio unemployment benefits but also "the additional $600 a week approved in the federal stimulus package."
"[I]f you’re just saying ‘I’m afraid of the virus,’ that would not be sufficient," Ohio Department of Job and Family Services Director Kimberly Hall said earlier this week. The state made clear there "will be a strong presumption that if an individual’s job is available, they will not be eligible for unemployment benefits." The department will determine "whether a reasonable person would consider the workplace safe."
Thus far, there is no exemption for "working parents without access to child care facilities, which remain closed to most children." Hall said that she would announce a "solution" for parents in that situation soon.
Policy Matters Ohio, a research group, said that the state's current policy "fails to spell out good cause exemptions" for workers "who have real, justifiable reasons for not returning to work, including those susceptible to COVID-19." The group notes that Ohio puts the onus on employees to prove their working conditions are not safe, but employees "have little access to the evidence needed to prove their employer failed to follow COVID protocols and are largely without access to legal counsel and advice."
Ohio technically allows employees who get cut off from unemployment benefits to appeal the decision. But the unemployment system in Ohio is "still overwhelmed by processing claims filed in April." That means people who are inappropriately cut off could "spend weeks trying to navigate an already overburdened system to reestablish eligibility through appeals, while having no income."
Policy Matters Ohio suggests that the state specify categories of workers who should not be cut off from unemployment benefits for refusing to return to work, including: workers diagnosed with COVID-19 (or who are seeking a diagnosis), workers caring for a sick family member, workers who were told to quarantine by a doctor, workers at high-risk if they contract COVID-19, and workers who have a family member who is immunocompromised.
The state has not yet responded or issued any additional guidance.
In Iowa, Governor Kim Reynolds (R) "loosened restrictions in 77 counties starting May 1." The move came even as cases statewide continued to increase.
Iowa has "urged employers to report workers who don’t return to their jobs for a good reason 'as soon as possible.'" The state warned employees that continuing to collect unemployment benefits after their job becomes available could result in "serious consequences," including fraud charges.
"To get the economy going, in order for us to have a good recovery, we need employees to return to work when there’s an opportunity for them to do that," Iowa Workforce Development Director Beth Townsend said. According to Townsend, "fear of catching the virus would be considered a voluntary resignation, which disqualifies workers from receiving unemployment benefits."
Some employers are hesitant to reopen during the pandemic, forcing their employees back into jobs that may produce little income. Jerry Akers, who runs several Great Clips salons in Iowa, says he "worries about his employees' financial well-being when he asks them to return."
Initially, the only exemptions in Iowa were "being sick due to the virus or living with an infected family member." But, under intense criticism, Reynolds relaxed the policy slightly, allowing "those in higher-risk categories of contracting the disease and those with higher-risk household members" to continue receiving unemployment benefits even if their employer reopens.
Messing with Texas workers
Texas allowed its "stay-at-home order to lapse on April 30, a move that gave Texas, the nation’s second-largest state, one of the shortest such orders in the country." The decision was not a result of any reduction in the pace of new cases in the state.
The state is advising employers who have reopened to "report any job refusal."
Texas has established, however, several categories of workers who can refuse work during the pandemic but can continue to collect unemployment insurance.
At High Risk – People 65 years or older are at a higher risk for getting very sick from COVID-19
Household member at high risk – People 65 years or older are at a higher risk of getting very sick from COVID-19
Diagnosed with COVID - the individual has tested positive for COVID-19 by a source authorized by the State of Texas and is not recovered.
Family member with COVID - anybody in the household has tested positive for COVID-19 by a source authorized by the State of Texas and is not recovered and 14 days have not yet passed.
Quarantined – individual is currently in 14-day quarantine due to close contact exposure to COVID-19.
Child care – Child’s school or daycare closed and no alternatives are available.
Texas' list does not cover every scenario where an employee could reasonably refuse work. It does not, for example, "specify other high risk groups, including those with underlying medical conditions or those who are immunocompromised."
But Texas has gone much further than Ohio or Iowa. Other refusals in Texas will be "subject to a case by case review by the Texas Workforce Commission based on individual circumstances."
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