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Can You Refuse to Go Back to Work and Continue to Collect Unemployment?

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By Richard Dahl on April 27, 2020 11:55 AM

It was a blow when your employer laid you off due to the coronavirus pandemic back in March. But you're collecting a $500 weekly unemployment check from your state and now you're receiving an extra $600 in federal Pandemic Unemployment Assistance (PUA) money from the CARES Act.

You're making more money now that when you were working.

Even so, in ordinary times you'd probably welcome a return to regular employment — after all, the PUA money runs out on July 31 and your unemployment checks will end later in the year.

But maybe you weren't that happy with your job anyway. And then, the final clincher: Unlike a month or two ago, you are now well aware of how easily COVID-19 can be transmitted. Employment is nice, but the threat of severe illness — or even death — is not.

So, can you say no to your employer and continue to receive the checks?

Generally, the answer is no. That's not the way unemployment benefits work.

What Do the Labor Department and OSHA Say?

The U.S. Labor Department states on its website that if an employee refuses to go back to work, that means the end of their benefits. "(A)s soon as the business reopens and the employee is recalled for work, … eligibility for PUA would cease unless the individual could identify some other qualifying circumstance outlined in the CARES Act."

Federal law requires employers to provide safe workplaces for their employees. The Occupational Safety and Health Act (OSHA) has created nonbinding guidelines for employers to follow regarding the coronavirus.

Again, those are nonbinding guidelines. In early April, OSHA issued an interim enforcement plan, but followed it with a statement instructing workplace inspectors to use their judgment in determining whether employers are making a "good faith effort" to keep their workplaces safe during the pandemic.

Thousands of workers have filed complaints to OSHA, but in the absence of more stringent requirements of the type recommended by the Centers for Disease Control, the outcome of those complaints is anybody's guess.

Still, OSHA and state laws require employers to provide safe working environments. And although a worker can't generally refuse a return to work and continue collecting unemployment, lawyers and state labor officials are indicating that exceptions can be made on a case-by-case basis.

Going Back to Work, State by State

The first state to "lift" business closures on April 24, Georgia, has not provided much guidance on this question, other than the following statement from Labor Commissioner Mark Butler: “If an employee is concerned about returning to work due to exposure to COVID-19, we are encouraging employees to communicate with their employers on plans to safely return to work."

Later, he said that furloughed workers may be able to continue receiving unemployment, "but you'll have to show proof of the issue you're having."

Other southern states are preparing to follow Georgia's lead in lifting business closures and at some point that will be happening in other parts of the country. And no doubt workers everywhere will be nervous about returning and preferring to continue collecting unemployment as long as they can.

Their luck may depend on which state they live in.

Gary Burtless, a senior fellow at the Brookings Institute, told VICE News that southern states are more likely to be hard-nosed in dealing with furloughed employees. "In some states I have little doubt the Unemployment Insurance agency will respect UI claimants' assessment that the possibility of COVID-19 infection is a legitimate reason for workers to stay home, especially in the case of workers who have risk factors for COVID-19 mortality (old age, diabetes, etc.)," he wrote in an email. "However, in other states, possibly including GA, TN & SC, I would expect UI agencies to be rather hard-nosed about UI claimants' fears of contracting the COVID-19 coronavirus."

If you have been called back to work and you're not in a more lenient state, it may be helpful to review what OSHA says about your rights of refusal.

And if you do go back to work and feel your workplace is unsafe, you should contact OSHA. An employment law attorney may also be able to help you evaluate your options to keep you and your family safe.

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