The federal government has allowed states to change their unemployment benefits laws. It lets them provide unemployment benefits for situations related to the coronavirus (COVID-19).  And, the Coronavirus Aid, Relief, and Economic Security (CARES) Act has expanded benefits further. It authorizes:

  • Self-employed workers and gig workers to receive unemployment benefits
  • All unemployed workers to receive an extra $600 a week for up to six months
  • Unemployed workers to get an extra 13 weeks of benefits beyond the number a state currently provides

As we begin reviewing options to reopen the economy, many of us are wondering how to bring employees back to work, as the unemployment benefits are significant through the end of July 2020.  This is a concern I have addressed over the past few weeks.  Below are a few questions/answers, other options and additional information.

Questions & Answers for Employers:

My employer has remained open because it is essential. I’m not sick, nor is anyone in my household sick. I do not have children or care for someone who cannot care for themselves. However, I’m afraid of getting coronavirus from customers coming to the store, so I quit and filed for unemployment. Can I obtain benefits under the CARES Act?

No. Under the CARES Act, you may be eligible for benefits if you meet one of the circumstances listed in the Act, but none include the scenario described. On these facts, you are not eligible for Pandemic Unemployment Assistance (PUA) because you do not meet any of the qualifying circumstances.

There are, however, circumstances under the CARES Act in which specific, credible health concerns could require an individual to quit his or her job and thereby make the individual eligible for PUA. For example, an individual may be eligible for PUA if he or she was diagnosed with COVID-19 by a qualified medical professional, and although the individual no longer has COVID-19, the illness caused health complications that render the individual objectively unable to perform his or her essential job functions, with or without a reasonable accommodation. However, voluntarily deciding to quit your job out of a general concern about exposure to COVID-19 does not make you eligible for PUA.

I was furloughed by my employer, but they have now reopened and asked me to return to my job. Can I remain on unemployment?

No. As a general matter, individuals receiving regular unemployment compensation must act upon any referral to suitable employment and must accept any offer of suitable employment. Barring unusual circumstances, a request that a furloughed employee return to his or her job very likely constitutes an offer of suitable employment that the employee must accept.

While eligibility for PUA does not turn on whether an individual is actively seeking work, it does require that the individual be unemployed, partially employed, or unable or unavailable to work due to certain circumstances that are a direct result of COVID-19 or the COVID-19 public health emergency. In the situation outlined here, an employee who had been furloughed because his or her employer has closed the place of employment would potentially be eligible for PUA while the employer remained closed, assuming the closure was a direct result of the COVID-19 public health emergency and other qualifying conditions are satisfied. However, as soon as the business reopens and the employee is recalled for work, as in the example above, eligibility for PUA would cease unless the individual could identify some other qualifying circumstance outlined in the CARES Act.

One of my workers quit because he said he would prefer to receive the unemployment compensation benefits under the CARES Act. Is he eligible for unemployment? If not, what can I do?

No, typically that employee would not be eligible for regular unemployment compensation or PUA. Eligibility for regular unemployment compensation varies by state but generally does not include those who voluntarily leave employment. Similarly, to receive PUA, an individual must be ineligible for regular unemployment compensation or extended benefits under state or federal law, or pandemic emergency unemployment compensation, and satisfy one of the eligibility criteria enumerated in the CARES Act, as explained in Unemployment Insurance Program Letter 16-20. There are multiple qualifying circumstances related to COVID-19 that can make an individual eligible for PUA, including if the individual quits his or her job as a direct result of COVID-19. Quitting to access unemployment benefits is not one of them. Individuals who quit their jobs to access higher benefits and are untruthful in their UI application about their reason for quitting, will be considered to have committed fraud.

If desired, employers can contest unemployment insurance claims through their state unemployment insurance agency’s process.

(https://www.dol.gov/coronavirus/unemployment-insurance#faqs)

New York State Shared Work Program:

Shared Work can be used as an option to avoid layoffs and retain the skill sets of a valuable workforce.  The specifics regarding Shared Work are found here and a quick review follows.  As you will see in the hyperlink, also included are related videos, in addition to management and employee testimonials.

  • Flexibility – the employer determines which employees (Shared Work claimants) will be on the plan and how much their hours will be reduced (between 20 and 60 percent).  If the needs of the business change, the plan can be amended.
  • Employee wages and benefits remain intact.
  • Employees included on a plan can be full-time, part-time, temporary, or seasonal.
  • A plan can include as few as two employees.
  • A Shared Work plan can be filed online.  This can be done even after a New York State WARN is submitted.  This option assists the business to meet contracted service fulfillment in the event that the closure date is ultimately extended.
  1. The Shared Work Program FACT Sheet: https://labor.ny.gov/formsdocs/ui/SW1.pdf
  2. How to File for Unemployment Insurance: https://www.labor.ny.gov/formsdocs/factsheets/pdfs/P800.pdf
  3. Rapid Response for Businesses: https://www.labor.ny.gov/formsdocs/factsheets/pdfs/p481BUS.pdf
  4. Rapid Response for Customers: https://labor.ny.gov/formsdocs/factsheets/pdfs/p481WKR.pdf
  5. Business Services: https://labor.ny.gov/formsdocs/factsheets/pdfs/p469.pdf

WARN Act Information:

WARN

False Unemployment Claims & Fighting Unemployment:

  1. Document all conversations with employees in writing and send certified letters. Ensure you have any text messages, phone records and witnesses that listened to the employer offering a return to work option to the employee.
  2. Be proactive in your responses and information submission to the Unemployment Department.
  3. Spend the time needed to prepare for the hearing or dispute the claim.
  4. Offer a Shared Work Option in which employees can take time off during the week and phase back into full-time. This is not the best approach, but it might be a collaborative process to consider.

Fighting unemployment claims is never an easy process to go through.  It can be time consuming and either side can appeal the ruling.  Remember your time is worth money as well, when considering fight these claims.  However, we should not allow unemployment abuse or false unemployment claims. If there is work, hold employees accountable to return to work.  I am happy to offer any guidance related to a phase in process or disputing an unemployment claim for any organization.

Additional Links:

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