Understanding the Physical and Financial Risks of Returning to Work Versus Collecting Unemployment
Though the COVID-19 pandemic has already resulted in undeniable economic hardship throughout the country, some direct, individual relief came in the form of the federal CARES Act. In addition to loans for small businesses and support for local governments, the legislation represented an unprecedented expansion to state unemployment programs. California already enjoyed one of the most generous unemployment caps in the country, with an individual receiving up to $450 in benefits a week, but the CARES Act offers a blanket, no-questions-asked additional $600 per week on top of any amount certified.
This element of the CARES Act has inarguably helped many working Americans stay on top of their bills and save for the uncertain future. For others, the infusion created a strange situation: Some were making significantly more money on unemployment benefits than they were working their usual, pre-pandemic job. Conservative lawmakers have argued this creates a conflict of interest within the economy, as workers are incentivized to not seek new employment or return to old jobs and instead receive the more lucrative benefits of unemployment. Others argue that many are more than willing to work but only want to do so in a scenario where the virus is eradicated, something that has not occurred despite nationwide re-openings.
Either way, with CARES Act unemployment funding ceasing at the end of July, many employees face tough decisions. Some may hold out for new expansions or stimuli, while others may want to take what they can get. As re-openings in California accelerate, however, many employees are being asked to return to work by their former employers. Since COVID-19 continues to spread throughout the state, workers are often concerned about their safety and wonder if there is any way to avoid new employment without jeopardizing their California unemployment benefits. Below, we cover some common scenarios and how the state has responded so far.
How California Unemployment Typically Works
In normal circumstances, you must be able and available to work when you certify for your weekly benefits. Sometimes, you will be required to actively seek work and provide evidence you are conducting an active job search. You must report any job offer that is made to you.
The key to determining if rejecting a job offer will affect your benefits is if that job is “suitable.” Suitability of a job offer hinges on your prior salary, prior experience and training, how long you’ve been unemployed, the distance between you and the job, and the risks inherent to performing job duties.
In other words, you can probably safely reject a job offer it its scope and pay rate are not commiserate with your immediate past employment experience. If you were an executive, for example, you can likely dismiss an offer to work as a retail store clerk. However, an offer to return to your prior place of employment is by definition “suitable.” In a non-pandemic world, if you were furloughed or laid off, you would likely be obligated to return to your former employer (barring some extenuating circumstances) without risking of losing your benefits. However, COVID-19 has introduced some new wrinkles into this process. Remember, suitability of a workplace is in part determined by the risks inherent to performing the job. COVID-19 has in effect introduced substantial risk to many types of work that were previously considered not at all hazardous.
What Qualifies as Substantial Risk in the Age of COVID-19?
To have a shot at retaining unemployment benefits after rejecting an otherwise suitable job offer, you will need to have a valid reason for claiming that returning to work represents a substantial risk to your health and safety. This is generally easier to argue in California than some other states, especially as the state and local governments continue to take the risks inherent to the virus seriously. Still, not all reasons will work, and every situation is different.
First, some examples of what will not pass muster with the unemployment office. Many may assert that they believe it is not safe to return to any non-remote workplace so long as COVID-19 remains a public health emergency. Unfortunately, this blanket belief will not alone protect you from losing your unemployment benefits. While no one can force you to return to a workplace you feel unsafe in, without additional evidence or justification specific to your situation, you will likely lose your benefits.
You are also not able to stay on unemployment just because you are making more through expanded benefits or even normal benefits than you were at your job. The unemployment office will not be sympathetic to these sorts of justifications, no matter any additional hardship you are experiencing. This includes, regrettably, scenarios where you are requested back at an old job, but at reduced hours, potentially compounding financial woes.
Finally, any remote employment scenario is not considered to carry substantial risk. If your office has transformed into a remote workplace, where all of your work is conducted from home, you will likely need to accept the job offer or jeopardize unemployment benefits. While working from home can carry its own quirks and challenges, it is fundamentally safer than working with others in an office setting.
With these major exclusions in mind, there are several potentially successful means of arguing substantial risk and keeping California unemployment benefits despite a job offer rejection. Keep in mind that, even if you are convinced your reason is valid, the California unemployment office is struggling to keep up with the volume of claims. They may mistakenly or procedurally halt your benefits, and you should expect a potential interruption when reporting a job rejection, regardless of your justification. You should still always report a job offer when certifying for benefits. Not doing so is considered fraud and can lead to significant penalties later on.
Some scenarios where you may be able to keep your unemployment benefits despite rejecting an otherwise suitable job offer include:
- You have tested positive for COVID-19, are exhibiting symptoms, or have a known exposure to someone who tested positive. No one wants an outbreak in their workplace, so if you have contracted the virus or may have done so, the unemployment office is likely to extend you leniency. You will likely need to get a note from your healthcare provider acknowledging the symptoms or a positive COVID-19 test. If you were only exposed, a doctor can still write a note urging you to self-isolate until you are cleared. Keep in mind that, if the job offer is still available once you recover or repeatedly test negative, you will most likely need to accept or lose any further unemployment benefits.
- You are immunocompromised or live with someone who is immunocompromised. The medical community has acknowledged that certain conditions place some in high-risk categories for developing life-threatening complications as a result of COVID-19. If the job offer in question puts you in contact with a large number of people – examples can include a restaurant, retail store, or factory – the position likely puts you at a substantially elevated risk of transmitting the virus. A note from your healthcare provider confirming you are high-risk will help, but remember you must be “able and available” to work, so if a safer, remote position is offered, you will likely be obligated to accept.
- You believe your employer is not taking COVID-19 safety seriously. This one is tricky. California businesses are required to follow their evolving reopening guidelines, and if your employer is willfully and consistently failing to stay in compliance, you may be able to argue that returning to work represents substantial risk. However, proving this disregard for safety can be time-consuming and challenging. Keep in mind you are likely to lose unemployment benefits while a situation is investigated.
- If you return to work, your children will not be able to access education. The CARES Act specifically enshrines protections for working parents with children still in school. If your returning to work means your child cannot access learning materials, you likely will be able to reject a job offer while keeping unemployment benefits. This is likely only applicable to children so young that they cannot access California’s virtual schooling mechanisms on their own. If you have older children in high school, for example, you may be out of luck.
If You Are Struggling with Unemployment Benefits, We Can Help
For some, unemployment compensation is critical to staying afloat as COVID-19 continues spreading throughout the state. While California’s unemployment program is more robust, it can still be a labyrinthine, confusing system. Our employment attorneys at Marder Employment Law are devoted to protecting workers’ rights and will do everything possible to make sure you receive the benefits you are owed. Our 25 years of legal experience can help protect you in these uncertain times.
Schedule your free consultation to see how we can help by dialing (888) 796-4010 or contacting us online.