Department of Labor Answers FAQs About Childcare & the FFCRA 

As summer winds down, families dealing with the ramifications of the coronavirus pandemic may now be faced with issues brought about by the beginning of a new school year. Some schools have reopened with full-time in-person classes; others have adopted full-time remote learning. Additionally, some schools have opted to create a hybrid model that mixes the two. In another example, some schools are giving parents the choice as to whether they want their child to attend in person or remotely. Working parents may face a difficult decision on how to manage these new circumstances as well as maintaining their own work situation.

In response to these concerns, on August 27th, 2020, the U.S. Department of Labor added three Frequently Asked Questions (FAQs) regarding the Families First Coronavirus Response Act (FFCRA) to its FAQs webpage. The new questions address circumstances under which a working parent may — or may not — receive paid leave under the FFCRA.

FFCRA Childcare Provisions Basics

As stated in the FFCRA, an otherwise eligible employee may become eligible to receive paid FFCRA leave due to a COVID-19-related school closing to care for a child under the following situations:

  1. the child’s school is closed;
  2. the employee must “actually care” for the child “during that time,” and
  3. “no other suitable person is available” to care for the child.

Eligibility for paid FFCRA leave also requires that the employee is NOT able to work onsite OR through telework during the time they are caring for a child.

Summary of New FAQs

The three questions recently added to the FAQs webpage consist of the following:

  • FAQ #98 states that when a child must adhere to a school-mandated hybrid schedule, which designates certain days for in-school attendance and the other days for remote learning, the school qualifies as “closed” to the child on the days that prohibit in-school attendance. Accordingly, a parent who satisfies the second and third criteria listed above is entitled to paid FFCRA leave for the child’s remote-learning days.
  • FAQ # 99 explains that when a parent has the choice between full-time, in-school instruction and remote learning, and elects remote learning for their child, the parent is ineligible for paid FFCRA “school closure” leave because the child’s school is open and remote attendance was the employee’s choice. The FAQ does state, however, that the parent of a child under a quarantine order or who has been advised by a health care provider to self-isolate or self-quarantine, may have access to FFCRA child care benefits, regardless if the child’s school is open.
  • FAQ #100 confirms that parents, whose children’s schools have not reopened to in-person instruction yet, may take FFCRA leave while the school remains closed.

Employer Takeaway

The COVID-19 pandemic remains a fluid situation with new and updated guidance issued on a regular basis. It is important to remember, however, that employers still need to be in compliance with the obligations as stated under the FFCRA. For more information on FFCRA provisions, access the FFCRA Employer Fact Sheet.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Department of Labor Issues Rule Providing Access to Agency Guidance

On August 21st, 2020, the U.S. Department of Labor (DOL) announced the publication of its Promoting Regulatory Openness through Good Guidance Rule (PRO Good Guidance Rule). The rule, which implements Executive Order 13891 (Promoting the Rule of Law through Improved Agency Guidance Documents) seeks to create fairer procedures for the issuance and use of regulatory guidance at the DOL. The release of this guidance comes two months after the DOL published five new wage & hour opinion letters that address compliance issues related to the Fair Labor Standards Act (FLSA).

Contents of the Pro Good Guidance Rule

The PRO Good Guidance Rule, in accordance with the order, requires that the DOL use guidance appropriately, transparently, and in a manner that is accessible to the public. The rule accomplishes this in four key ways:

  1. By providing that, for significant guidance involving impacts greater than $100 million, the DOL will provide for notice-and-comment review of the guidance;
  2. By requiring all DOL guidance to be made available to the public in a searchable database;
  3. By allowing the public to petition the DOL on issues related to its guidance; and
  4. By limiting the DOL’s use of guidance to avoid potentially unfair conduct.

“Following the President’s direction, the U.S. Department of Labor undertook a comprehensive, nine-month assessment to ensure that American workers and businesses have fair notice of their rights and obligations under the law,” said U.S. Deputy Secretary of Labor Patrick Pizzella. “The Department is proud to unveil the results of its months of hard work – recognizing that these are just the first steps toward a more transparent government.”

In addition to these substantive requirements, pursuant to the Executive Order and the PRO Good Guidance Rule, the DOL performed a comprehensive review of its guidance library, rescinding nearly 3,200 documents. The remaining documents are all available in the searchable database mentioned earlier.

Employer Takeaway

Guidance documents can be invaluable for employers, managers, and Human Resources professionals when used properly. They can provide clarity about existing rights and obligations and help stakeholders comply with laws and regulations. By allowing the public to search the extensive database for specific topic guidance, and issue new guidance and opinion letters for consumption, the DOL continues their mission of fostering, promoting, and developing fair workplace practices between employers and employees.

 


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Guidance Released on Employers’ Obligations to Track Teleworker Hours

Since the beginning of the global COVID-19 pandemic, many employers have started telework arrangements with their workers. These arrangements have included allowing workers to work from home to meet government stay-at-home and social distancing orders. On August 24th, 2020, the U.S. Department of Labor’s (DOL’s) Wage and Hour Division (WHD) issued guidance entitled Field Assistance Bulletin 2020-5. This guidance clarifies an employer’s obligation under the Fair Labor Standards Act (FLSA) in tracking the number of hours of compensable work performed by employees who are teleworking or otherwise working in a workspace that is not controlled by their employers. The release comes weeks after the DOL published COVID-19 related guidance relating to the FLSA and the reopening of businesses.

Background

The FLSA generally requires employers to compensate their employees for all hours worked, including overtime hours. As the WHD’s interpretive rules explain, “[w]ork not requested but suffered or permitted is work time” that must be compensated. This principle applies equally to work performed away from the employer’s worksite or premises, such as telework performed at the employee’s home. According to the FLSA, “If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.”

While it may be easy to define what an employer actually knows, it may not always be clear when an employer “has reason to believe that work is being performed.” This is especially true when employees telework or otherwise work remotely at locations that the employer does not control or monitor.

Contents of the New Guidance

According to Field Assistance Bulletin 2020-5, the WHD wants to remind employers that they are required to pay employees for all hours worked, including work not requested but allowed and work performed at home. If the employer knows or has reason to believe that an employee is performing work, the time must be counted as hours worked.

For telework and remote work employees, while the employer has actual knowledge of the employees’ regularly scheduled hours; it may also have actual knowledge of hours worked through employee reports or other notifications. The FLSA’s standard for knowledge in the context of overtime is whether an employer has reason to believe work is being performed. This concept of “knowledge” should also be applied to when a worker is performing telework.

“Due to the coronavirus pandemic, more Americans are teleworking and working variable schedules than ever before to balance their jobs with a myriad of family obligations, such as remote learning for their children and many others. This has presented unique challenges to employers with regard to how to track work time accurately,” said Wage and Hour Division Administrator Cheryl Stanton. “Today’s guidance is one more tool the Wage and Hour Division is putting forward to ensure that workers are paid all the wages they have earned, and that employers have all the tools they need as they navigate what may, for many, be uncharted waters of managing remote workers.”

While the new guidance responds directly to needs that may have been created by new telework or remote work arrangements in response to the coronavirus pandemic, it should also be applied to other telework or remote work arrangements that may continue after the health crisis has passed.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Following Notice Requirements with a Remote Workforce

On August 17th, 2020, the website HR Dive published a question from an employer regarding an issue that many workplaces are currently facing. More specifically, the employer stated that their entire company is working remotely during the COVID-19 pandemic; do they still have to follow government agency notice requirements?

Posting Notices During COVID-19

Even though employees may be working from home, it is still necessary for employers to comply with any notice posting requirements that they fall under. According to attorney and Fisher Phillips partner Kevin Troutman, however, employers “have to take into account all the changes that have occurred.” These changes include the shift in working at a physical site to working remotely. A solution to making sure that employees are getting the most up-to-date notice information is to not only post it at the worksite but also follow up with electronic versions.

As the coronavirus pandemic continues, and workers remain remote, some government agencies may begin adding provisions into their posting instructions allowing employers easier ways to meet requirements. One way could be to deliver the information electronically. For example, in April when the U.S. Department of Labor (DOL) released notice requirements for the new Families First Coronavirus Response Act (FFCRA), they included an electronic delivery provision. As explained in the new federal paid leave mandate’s guidance:

Each covered employer must post a notice of the Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.

 Employer Takeaway

Given that the FFCRA was passed at a time when workplaces began to go remote, the inclusion of an electronic delivery mandate is not too surprising. There are a number of statutes with posting requirements, however, that were written before the pandemic and even before the prevalence of electronic communication. It is important for employers to be familiar with each specific statute they have to comply with and to be aware of any posting requirements associated with each. Employers need to continue to physically post any required notices, but may also want to consider sending or posting the notices on an electronic platform. Electronic distribution can help to ensure that all remote employees stay informed of new or updated legal information that affects them.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Employer to Pay Back Wages for Violation of COVID-19 Paid Sick Leave

Even during the COVID-19 pandemic, the U.S. Department of Labor’s Wage and Hour Division (WHD) is reminding employers that they are still enforcing the current wage and hour laws and regulations. These laws include newly enacted legislation, such as the Families First Coronavirus Response Act (FFCRA). One such example involves the operator of a McDonald’s franchise restaurant in Louisville, Kentucky, who was ordered to pay $1,135 in back wages to an employee after they failed to pay the worker for expanded family and medical leave to care for her child when coronavirus led to the closure of their childcare.

Details of the Case

According to an August 14th, 2020, news release, the WHD determined that NPT Partners LLC violated the Emergency Paid Sick Leave Act (EPSLA) provisions of the FFCRA. The decision found that, while NPT Partners paid the employee for two weeks of paid leave, the employer failed to pay for an additional three weeks of leave, for which the worker was eligible and needed. NPT Partners later paid the employee once the WHD notified the employer and explained their obligations.

“The Families First Coronavirus Response Act offers relief to workers as they navigate through the coronavirus pandemic to provide for themselves and their families,” said Wage and Hour Regional Administrator Juan Coria in Atlanta, Georgia. “The U.S. Department of Labor’s Wage and Hour Division is working vigorously to educate employers about their obligations under this law. We encourage employers to contact us to learn how they can avoid violations like the one found in this case, and ensure that workers are provided the leave the law requires.”

Background of the FFCRA

Congress enacted the FFCRA to help the U.S. combat the workplace effects of the coronavirus by giving tax credits to American businesses with fewer than 500 employees, either to provide employees with paid leave for the employee’s own health needs or to care for family members. The law enables employers to provide the paid leave and then by reimbursed by tax credits, while at the same time ensuring that workers do not have to choose between their paychecks and the public health measures needed to combat the virus.

The WHD continues to provide updated information on its website and through outreach efforts to ensure that workers and employers have the information they need about the benefits and protections of this new law. The agency also provides additional information on common issues employers and employees face when responding to the coronavirus and its effects on wages and hours worked under the Fair Labor Standards Act and on job-protected leave under the Family and Medical Leave Act. This information is available at https://www.dol.gov/agencies/whd/pandemic.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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CDC Updates COVID-19 Industry Guidance Library

Ever since the COVID-19 outbreak was declared a global pandemic in March 2020, the Centers of Disease Control and Prevention (CDC) has released over 160 guidance documents aimed to educate readers on ways to try to prevent the spread of the disease. Containing such information ranging from business operational considerations to guidance for safe practices, the CDC has created a guidance document library that can be accessed by anyone at any time.

Recent Additions

In the last two weeks alone, the CDC has published COVID-19 response documents for many specific industries and audiences. This new guidance includes information created specifically for:

  • Pediatric Healthcare Providers
  • General Laboratory Safety
  • Veterinary Clinics
  • K-12 School Administrators
  • Correctional and Detention Facilities
  • Transit Workers
  • Homeless Service Providers

Topics within the provided information include:

  • How to adapt a contact tracing program for your community or workplace;
  • Safety practices depending on your workplace and job function;
  • Infection prevention;
  • The use of cloth face coverings depending on your location; and
  • Best practices for cleaning, disinfection, and hand hygiene.

As the COVID-19 pandemic continues, the CDC has been responding by learning more about how the disease spreads and affects people and communities. By continuously releasing guidance documents on various subject matter, the CDC is hoping to assist businesses and the public at large to protect themselves, employees, customers, and coworkers and to generally help save lives.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Updated Paycheck Protection Program Guidance Released

On August 11th, 2020, the U.S. Small Business Administration (SBA) and United States Treasury issued joint guidance answering some questions that employers have had recently on specific coronavirus measures including the federal Paycheck Protection Program (PPP). This resource builds upon guidance previously released in April 2020, and then later updated on August 4th.

 Updated FAQ Content

In the August 11th update, the SBA and the Treasury issued two Frequently Asked Questions (FAQs) related to the PPP and three FAQs related to the PPP and Economic Injury Disaster Loans (EIDL). An interim final rule issued the same day establishes procedures for prospective borrowers who want to appeal certain SBA loan decisions.

In regards to the PPP, questions number 50 and 51 were added to the list of FAQs that were part of the original April 2020 document. The new FAQs:

  • Establish that the payment or nonpayment of fees of an agent or other third party is not material to the SBA’s guarantee of a PPP loan or to the SBA’s payment of fees to lenders.
  • Permit payments for vision and dental benefits included in the group health care benefits and insurance premiums that are eligible to be paid with PPP funds.

Loan Forgiveness FAQs

The three FAQs related to the PPP and EIDL were added to a list of PPP forgiveness FAQs, originally published on August 4th. These new FAQs:

  • Describe how a lender will be able to confirm the amount of any EIDL advance that will be automatically deducted by the SBA from a PPP borrower’s loan forgiveness amount when the borrower has received both EIDL and PPP funds. Lenders can confirm the advance amount through the PPP Forgiveness Platform.
  • Instruct lenders on how to handle any remaining balance due on a PPP loan after the SBA remits the forgiveness amount to the lender, including if there has been a reduction in the forgiveness amount for an EIDL advance. Lenders must notify the borrower of the amount remitted by the SBA and when the first payment will be due. The borrow must replay the loan before the maturity date, either two or five years. Previous guidance indicated that PPP loans originating before June 5th, 2020, have a two-year term, unless the lender and borrower mutually agree to extend the maturity of such loans to five years. If the loan originated on or after June 5th, 2020, the term is five years.
  • Outline what a lender should do if a borrower received an EIDL advance in excess of the amount of its PPP loan. Lenders must notify the borrower when the first payment will be due, and the loan must be repaid by the borrower before the maturity date, either two or five years.

New Interim Final Rule

The new interim final rule establishes numerous review procedures, including:

  • The right for a PPP borrower to request a review of a lender decision or an SBA decision that a borrower is ineligible for loan forgiveness.  Businesses can appeal final SBA decisions to the Office of Hearings and Appeals (OHA). Borrowers may also request that the SBA review a lender decision outside of the OHA.
  • Documentation requirements, time limits, and a walkthrough of the processes. Oral hearings are permitted only in specific scenarios following a request or at the judge’s election.

Background of the PPP

Congress created the PPP as part of the $2 trillion Coronavirus Aid, Relief, and Economic Security (CARES) Act, P.L. 116-136. The legislation authorized the Treasury to use the SBA’s 7(a) small business lending program to fund forgivable loans of up to $10 million per borrower that qualifying businesses could spend to cover payroll, mortgage interest, rent, and utilities.

The loans applied small businesses in operation on February 15th, 2020, with 500 or fewer employees, including not-for-profits, veterans’ organizations, Tribal concerns, self-employed individuals, sole proprietorships, and independent contractors. Businesses with more than 500 employees in certain industries could also apply for loans. The deadline to apply for a PPP loan expired on August 8th, 2020.

Under the PPP’s guidelines, loan recipients can have their loans forgiven in full if businesses used the funds for eligible expenses, among other criteria. The amount of the loan forgiveness may adjust based on the percentage of eligible costs attributed to nonpayroll costs, any decrease in employee headcount, and decreases in salaries or wages per employee.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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President Trump Signs Four COVID-19-Related Executive Orders

In response to the perceived stalemate between the U.S. Senate and Congress on the extension of unemployment benefits and other provisions of the Coronavirus Aid, Relief, and Economic Security Act of 2020 (CARES Act or Act), President Donald J. Trump issued an Executive Order and three Memoranda (known collectively as the “Executive Orders”) to his Cabinet and Executive Agency providing or extending COVID-19 relief to individuals and businesses. The signing of these orders occurred on August 8th, 2020.

Disaster Relief/Unemployment Insurance Benefits

Previously, the CARES Act provided a $600-per-week federally-funded unemployment compensation assistance to an eligible unemployed person, in addition to any standard state unemployment benefits the individual could receive. That benefit, however, expired July 31st, 2020. In response, the Disaster Relief Memorandum directs the Federal Emergency Management Agency (FEMA) to provide benefits from the Department of Homeland Security’s Disaster Relief Fund and also directs states to use their Coronavirus Relief Fund allocation to provide financial relief to unemployed individuals affected by COVID-19, principally through an up to a $400-per-week supplemental unemployment compensation benefit.

The Disaster Relief Memorandum makes two significant changes in eligibility compared to the $600 supplemental benefit under the CARES Act.

  • First, the Memorandum requires that to be eligible, an individual must receive at least $100 per week in regular state unemployment compensation assistance (up from $1).
  • Second, the Memorandum requires the individual to certify that his or her lost wages are attributable to disruptions caused by COVID-19.

Payroll Tax Deferral

The Tax Memorandum directs the Secretary of Treasury to defer the withholding, deposit, and payment of the employee portion of social security tax (but not Medicare tax) on wages or compensation paid during the period of September 1st, 2020, through December 31st, 2020, if the employee’s wages or compensation payable during any biweekly payroll period are generally less than $4,000, calculated on a pre-tax basis, or the equivalent amount during other payroll periods. Amounts deferred will be without penalties, interest, additional amounts, or additions to tax.

The Tax Memorandum also directs the Secretary of Treasury to issue guidance to implement the Memorandum and to also find ways to eliminate the deferred tax entirely. It should be noted that the Tax Memorandum provides only for the deferral of the employee portion of social security tax and, in the event the Secretary of Treasury does not eliminate the deferred tax entirely, an affected employee will ultimately be required to pay any remaining deferred tax. However, until the guidance from the Secretary of the Treasury is issued, it is unclear how an employee would pay the deferred tax following the end of the deferral period.

Student Loan Payment Relief

The Education Memorandum directs the Secretary of Education to create waivers of and modifications to the requirements and conditions of economic hardship deferments and provide such deferments as necessary to continue the temporary stop of payments and the waiver of all interest on student loans held by the Department of Education until December 31st, 2020. The Education Memorandum further provides that student loan borrowers may continue to make payments if they wish to do so.

Eviction Minimization

The Housing Executive Order directs certain members of the Cabinet to consider, identify, review, and take action necessary to minimize, to the greatest extent possible, residential evictions and foreclosures during the COVID-19 pandemic. The Order directs:

  • the Secretary of Health and Human Services and the Director of the Centers for Disease Control and Prevention to consider whether any temporary halting of evictions for failure to pay rent are reasonably necessary to prevent further spread of COVID-19;
  • the Secretary of the Treasury and the Secretary of Housing and Urban Development (HUD Secretary) to identify federal funds that could be used to provide temporary financial assistance to renters and homeowners who are struggling to make monthly payments as a result of financial hardships caused by COVID-19;
  • the HUD Secretary to also act to promote the ability of renters and homeowners to avoid eviction or foreclosure, including by providing federal funds to landlords; and
  • the Director of Federal Housing Finance Agency to consult with the Secretary of Treasury to review existing authorities and resources that may be used to limit evictions.

Employer Takeaways

As of the date of this post, none of the Executive Orders described above are operational. Since the President’s signing, the constitutionality of these actions has been questioned, and legal challenges have been threatened and may be instituted. It is important, however, for employers to have a basic understanding of these actions should they become effective in the near future.

 


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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EEOC Releases Guidance Clarifying Employee Opioid Use

On August 5th, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued a guidance document to address concerns about the employment provisions of the Americans with Disabilities Act (ADA) and the current opioid epidemic.

Guidance Summary

While making it clear that current illegal drug use does not qualify as a covered disability, the guidance clarifies that individuals who lawfully use opioid medication, currently receive treatment for opioid addiction and receive Medication Assisted Treatment (MAT), or have recovered from their addiction, qualify as protected from disability discrimination.

The definition of “Opioids,” according to the EEOC, includes prescription drugs such as codeine, morphine, oxycodone (OxyContin®, Percodan®, Percocet®), hydrocodone (Vicodin®, Lortab®, Lorcet®), and meperidine (Demerol®), as well as illegal drugs like heroin. The designation of an opioid also includes buprenorphine (Suboxone® or Subutex®) and methadone, which can be prescribed to treat opioid addiction in a Medication Assisted Treatment program.

In addition, the document answers questions about reasonable accommodations that may be available to employees who currently legally use opioids, as well as what to do if an employer has concerns about the employee’s ability to safely perform his or her job. The topics covered in the document include specific subjects such as:

  • disqualification from a job;
  • performance and safety; and
  • protecting employee rights.

Employer Takeaway

The increase of opioid use and abuse in recent years has posed unique challenges to the workplace. By releasing this guidance, the EEOC aims to provide clarity to the public regarding existing legal requirements under the law when it comes to drug and opioid use as it relates to the workplace. The EEOC does make it clear, however, that this information does not represent new policy but instead applies principles already established in the ADA’s statutory and regulatory provisions as well as previously-issued guidance. The agency also wants employees to realize that they may have additional rights under other laws, such as the Family and Medical Leave Act (FMLA) and state or local laws.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Employees Refusing Work for Safety Reasons Might Get Unemployment

On July 21st, 2020, the U.S. Department of Labor’s Employment and Training Administration office (ETA) released an advisory letter for employers containing frequently asked questions and answers surrounding the Coronavirus Aid, Relief, and Economic Security Act of 2020 (CARES Act or Act). The new guidance contains an instruction that an employee who refuses to work because of COVID-19 health or safety concerns still could be eligible under specific state law for unemployment insurance benefits (UI) that were already authorized under another provision of the Act — the Pandemic Unemployment Assistance program (PUA).

Background of the PUA

The PUA expires on December 31st, 2020, and provides up to 39 weeks of UI benefits to people not otherwise eligible for regular unemployment compensation (including independent contractors and self-employed individuals). Generally, to qualify for PUA benefits, an individual must be “otherwise able to work and available for work within the meaning of applicable state law, except the individual is unemployed, partially unemployed, or unable or unavailable to work” because of one of the COVID-19-related reasons set forth in the CARES Act. These reasons include when the person is:

  1. ill from the virus;
  2. unable to reach their place of employment because they are quarantined;
  3. caring for a household member with the virus; or
  4. the primary caregiver of a child who is at home due to a forced school closure.

Suitable Work Provisions

The ETA, however, does note that a person is considered “available for work under state law if the individual does not limit his or her availability for suitable work.” The word “suitable” is extremely important because, according to the ETA, numerous states have “suitable work” provisions “that consider work that unreasonably exposes an individual to safety risks to be unsuitable.” Due to that definition, if an individual refuses work “that unreasonably exposes him or her to COVID-19” under state rules, the individual is still deemed to be available for “suitable” work and is not disqualified from receiving unemployment compensation, including PUA benefits.

The ETA also advises that an otherwise eligible individual may be entitled to PUA “if he or she were to refuse work that would be considered suitable under state law, but turned the work down for ‘good cause’ under state law.” The ETA, however, does not offer a definition of the term “good cause,” leaving it to be defined in applicable state laws and regulations.

PUA Eligibility

In the new guidance, the ETA also clarifies that an individual who becomes unemployed for reasons unrelated to COVID-19, but cannot find another job because businesses are either closed or not hiring as a result of the COVID-19 pandemic, is not eligible for PUA benefits for that reason. To receive PUA benefits, the person would need to qualify for one of the four circumstances described earlier in this post, not including COVID-19’s general effect on the labor market.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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