As employers start to return employees to the physical workplace, new issues keep arising daily. Here’s a common scenario:
Employee X has been on furlough since late March and collecting more on unemployment than if he had been employed, thanks to the extra $600 weekly payment.
Employer now asks Employee to return to work. Although there are many responses, here are a few typical responses from the employee that I’ve been hearing from employers:
- Sure, when can I start?
- I don’t think it’s safe for me to return. Can’t I just “stay” on unemployment?
- My child’s daycare is closed and I don’t have coverage. Isn’t there some paid leave provision I might qualify for? Can I also collect unemployment too?
- I’m over 65 and I thought I wasn’t supposed to be returning to work. Can I just collect unemployment?
The order authorizes the state Department of Labor to consider, in an unemployment compensation application, the “degree of risk to the individual’s health or, due to the COVID-19 public health emergency, the health of a member of that individual’s household.”
The work is “unsuitable”, if a worker is exposed to an “unreasonable risk” to his or her health because of the coronavirus, or risks the health of a member of the employee’s household.
Indeed, Governor Lamont said at a press conference (reported by the Hartford Courant) earlier this week that those who are vulnerable to COVID-19 — over 65 and with underlying health problems — “should not be going back to work for the near term.” “And given that restriction, they would be eligible for unemployment compensation.”
The employer in this instance would have no obligation to keep the position open indefinitely so employees who seek this route risk their job entirely.
But suppose the employee asks for leave instead and the employer has less than 500 employees. In the case of the absence of childcare, the new FFCRA law provides for two-thirds of the employee’s regular rate of pay for up to 12 weeks total under EPSLA and FMLA+ (subject to caps).
In such an instance, the employee gets the paid leave but is not eligible for unemployment compensation.
In fact, the CT DOL made this explicitly clear in a recent FAQ on the subject.
Q: If I received paid sick leave, am I eligible for unemployment benefits?
A: No, you would not be eligible for unemployment benefits during a week in which you received paid sick leave.
What the employee also gets is job protection too, similar to regular FMLA. While the protection isn’t absolute, the employer does have some substantial obligations to try to protect the employee’s job during this period of leave.
Employers who are confronted with these issues should consider seeking legal counsel to navigate these paths. It’s not intuitive right now and the rules keep getting tweaked by both the federal and state governments. This is particularly true if the employer is also the recipient of a PPP loan.