As states reopen, many weigh difficult decision to return to work amid pandemic: 'It's a precarious situation'

Korin Miller
·Writer
Updated ·9 min read

Some states in the U.S. are taking steps to reopen after weeks of having their residents shelter in place. Georgia has reopened nonessential businesses, including gyms, tattoo parlors, barbershops and massage parlors, and now allows restaurants to offer sit-down service again. South Carolina Gov. Harry McMaster issued executive orders to allow stores to open again, and several other states say they’ll reopen soon too.

These changes come as the United States approaches 1 million confirmed cases of COVID-19, according to Johns Hopkins Coronavirus Resource Center data.

U.S. officials have released guidelines for reopening, called Opening Up America Again, which encourages states to open again only after they’ve had two weeks of declining numbers of positive tests for the coronavirus. None of these states that have begun to reopen meet the criteria.

But as businesses begin to open their doors to customers, employees who have been laid off as a result of the pandemic are being invited to go back to work — and some are afraid.

But workers are also in a difficult situation. While laws vary from state to state, people who collect unemployment benefits are usually not eligible to continue to receive those benefits if they turn down work that has been offered to them, Edgar Ndjatou, executive director of the employee rights organization Workplace Fairness, tells Yahoo Life. Many will be forced to choose between how comfortable they feel about their risk of contracting the coronavirus and their ability to collect an unemployment check. “That’s where people will have trouble,” Ndjatou says. “It’s a precarious situation.”

How do unemployment benefits work?

Unemployment insurance is a joint federal-state program that provides needed funds to out-of-work employees who meet certain requirements, according to the U.S. Department of Labor (DOL). Those requirements include being out of work through no fault of your own and meeting your state’s requirements for wages earned or time worked during a set period of time.

Each state has a separate unemployment program, but all states follow the same federal guidelines, the DOL says. The Coronavirus Aid, Relief, and Economic Security (CARES) Act, which was signed into law in late March, expands unemployment benefits on a state level to include workers who are not normally eligible for unemployment benefits, like those who are self-employed or contractors. CARES also provides an additional $600 a week to people who are unemployed.

Once an unemployed worker is approved for benefits, he or she typically needs to prove on a regular basis that he or she is actively looking for work, Ndjatou says.

Companies are legally obligated to report when employees refuse employment.

It is not usually out of retaliation, though. “Historically, most employers report refusal of employment because companies have to pay into unemployment funds [taxes or unemployment insurance], and a failure to report could potentially constitute fraud or a violation of state regulations,” Sara Elizabeth Dill, a partner at human rights law firm Anethum Global, tells Yahoo Life. “I do not think these reports should be seen as retaliatory. They are simply a company complying with the law.”

This legal obligation is not something that is easy for companies to forget. “Recently, a number of states have released guidance instructing employers of the notification requirement,” Dill says.

What other options are available to workers if they are too nervous or afraid to return to work?

This is where things get a little muddled. The Occupational Safety and Health Administration (OSHA) has a General Duty Clause that requires companies to offer workplaces that are "free from recognized hazards that are causing or likely to cause death or serious harm to employees." Under OSHA’s General Duty Clause, an employee could argue that unemployment benefits should not be denied because the workplace comes with a higher risk of contracting COVID-19 and the employer failed to keep the workplace free of this hazard or to take steps to protect the employees from contracting the virus, Dills says.

However, if employers are taking the commonly recognized steps set by the World Health Organization, Organization for Economic Co-operation and Development, and other reopening plans, it may be hard to make a case. “This is where employers should also exercise great caution, so as to avoid litigation or other complaints if employees become infected after returning to work,” Dill says.

“Laws and government power have a special set of rules in emergencies, like pandemics. Unfortunately, the labor laws do not have clear guidance for employers or employees, and we have the complexities of federal law, plus the laws of the states,” Dill adds. (She recommends consulting an employment lawyer in your state, if you’re able, to try to figure out the nuances of your state’s law on this.)

Otherwise, Dill says there are “not really many” other options for workers. “Some local municipalities have plans to help with rent abatement and eviction postponement, but, for the most part, unemployment is the only option,” she says. “It is why so many restaurants and stores and other small businesses have set up employee relief funds — to help cover what unemployment does not.”

There is an ethical issue too.

Lower-wage employees may also find themselves in a tricky situation, where they may be making more money from unemployment benefits than they do in their actual jobs. “This is a tough case,” Andrew I. Cohen, PhD, associate professor of philosophy and director of the Jean Beer Blumenfeld Center for Ethics at Georgia State University, tells Yahoo Life. “For workers who have little savings, that’s going to pose a challenge for them. They have to figure out whether to go back to work and expose themselves to the risk of disease, or stay at home and earn more money but then potentially risk their jobs.”

People tend to make an ethical decision like this based on incentives, Cohen says. “If the incentives are stronger to stay home, then that’s what they’re going to usually do,” he says. “If it’s stronger to go back to work, typically that’s what they’re going to do.”

But some states, like Georgia, are working to address this dilemma. Georgia labor commissioner Mark Butler recently said in a press release that the state has issued an emergency ruling that allows workers to make up to $300 a week without reducing the unemployment benefits they receive, providing an added incentive for employees to get back to work.

Cohen isn’t sure whether this kind of incentive will help or not. “We don’t know because we need data about what works and what does not,” he says.

The situation is challenging for companies too, Cohen says. “They have to either ask employees to take on a risk of disease to save their business or they could risk going out of business by remaining shut down and letting their employees stay safe,” he says. “It’s not easy.”

So what can workers do if they are afraid to return to work but don’t want to lose their unemployment benefits?

If you find yourself in this situation, Ndjatou recommends talking to your employer about your concerns. “Some employers are really strapped for cash, and they want to know that they can rely on former staff to come back. It’s less money for them to have to train new workers,” he says. “As a result, I would expect that some places will use incentives as much as possible to get workers back.”

Ndjatou says employees may “have more bargaining power than you think,” especially for those who have been working from home. If you have already been teleworking, Ndjatou says it is at least worth asking if you can continue to do so. But if your job doesn’t allow for telework, or telework is impossible in your field, you have the right to ask your employer what the plan is to keep you and your fellow employees safe, Ndjatou says. And, again, under law, the employer is required to offer you a safe place to work.

“This time period calls for a lot of creative solutions and also a level of patience and understanding between employees and employers,” Dill says. “Transparency and clear policies, open and honest communication, and placing health and safety as a top priority are all important components of reopening.”

For the latest coronavirus news and updates, follow along at https://news.yahoo.com/coronavirus. According to experts, people over 60 and those who are immunocompromised continue to be the most at risk. If you have questions, please reference the CDC’s and WHO’s resource guides.

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