David Birkhoff, a cook at a small restaurant in La Place, Louisiana, stopped working in March when the state told restaurants to shut down. The 43-year-old has received unemployment benefits since then.
At the beginning of this month, Birkhoff got a message from the owner that he and his wife had tested positive for COVID-19, the disease caused by the coronavirus, but that “we have no symptoms and feel great.”
The owner said they’d be retested on May 6, according to a screenshot of the message. Once he tested negative, the restaurant would reopen and everyone would come back to work.
Birkhoff balked. The father of five asked to see the test results showing that his boss had cleared the virus. He said he didn’t receive them and so he skipped his scheduled shift on Friday morning.
He likes his job and wants to return to work, Birkhoff said ― but only if it’s safe. “It’s not worth me getting sick,” he said. He doesn’t know if the restaurant will hold his job for him.
It’s a decision confronting a lot of workers as states loosen restrictions on commerce and more businesses reopen: Give up your income or go back to work ― and never mind that pandemic outside.
Congress granted extra-generous unemployment insurance in March to help people stay home during the coronavirus pandemic, which has killed more than 85,000 Americans since February. Republicans immediately complained that the benefits, in place through July, would actually make it too easy to stay home, even though social distancing has been our primary weapon against the virus.
The U.S. Department of Labor has since said that when an employer asks its workers to come back on the job, they can’t refuse and keep receiving unemployment benefits. There are exceptions, such as for people who are sick with COVID-19, have a compromised immune system or are primary caregivers for children whose schools are closed.
The Labor Department has specifically said, however, that if you’re just afraid of contracting the coronavirus, you can’t refuse an offer of “suitable work” and remain on benefits.
This federal guidance contradicts regulations for unemployment insurance in a disaster, which state that work is not suitable “if the circumstances present any unusual risk to the health, safety, or morals of the individual.”
The National Employment Law Project (NELP), in a letter to the Labor Department this week co-signed by the AFL-CIO, the NAACP and more than 200 other pro-worker organizations, highlighted the regulatory language on suitable work. The department’s advisories to states so far “fail to put the states, employers and workers on notice of the critical federal protections,” the letter says.
A Labor Department spokesperson acknowledged that the letter accurately cited the language on “suitable work” amid a disaster, but said eligibility for benefits is based on its more recent guidance. The department’s website says that fear of catching the coronavirus is a legitimate basis for declining work “only if you have been advised by a healthcare provider to self-quarantine as a result of such concerns.”
Michele Evermore, an unemployment policy expert with NELP, has hoped the Labor Department would update its guidance. “I don’t understand by what logic we are shoving people back into unsafe environments,” she said in an email.
Even with more favorable guidance, workers could still lose out. The unprecedented surge in unemployment claims has swamped state workforce agencies, and it can be difficult for people to get answers about whether they qualify based on their particular situation.
“I couldn’t get through to anybody,” Birkhoff said, when he tried calling the Louisiana Workforce Commission this week about the possible change in his job status.
The Louisiana agency declined to comment on the scenario of a worker concerned about a person known to have had COVID-19 at their place of employment, saying a claimant “should read the eligibility requirements and make a decision that is best for his or her situation.”
Even as states struggle with the basic task of distributing benefits, the Trump administration has encouraged them to ask employers for notification of individual workers refusing to return to their jobs. Employers regularly report job refusals as part of the unemployment insurance system, but several Republican-led states have emphasized the importance of doing so lately, as President Donald Trump urges states to reopen and calls on workers to be “warriors” for the economy.
If someone refuses to return to work and then loses their unemployment compensation, they can continue to certify that they’re unemployed while filing an appeal and, if it’s successful, could win back benefits for the weeks they missed.
Some states may also be less strict in interpreting the federal policy than others. California’s Employment Development Department, for example, has said that a worker would have good cause to refuse to return to work if they felt unsafe and their job was not essential.
JoAnn Arceneaux, a wheelchair assistance agent at the Hartsfield-Jackson Atlanta International Airport, got fired from her job this week for refusing to come to work because she has diabetes ― one of the health conditions that puts someone at higher risk for a severe case of COVID-19, according to the Centers for Disease Control and Prevention.
Arceneaux, 49, started receiving unemployment benefits last month after her shifts were reduced. She subsequently took unpaid leave. Last week, her employer, a contractor that provides airport services, asked her to return to work in a different role away from the airport. Arceneaux told her boss that she didn’t know whether that was a good idea given her health concerns.
“The government is saying people with these health conditions are advised to shelter in place,” she said.
She said her employer told her she would be fired and no longer eligible for unemployment benefits, but she still opted to stay home, reasoning that not receiving benefits is safer than risking exposure to a deadly virus. She received an email formally notifying her of the termination this week. “We offered you an opportunity to return to work as a commissary agent and you decided you did not want to return to work in that role,” the email said, according to a screenshot Arceneaux shared with HuffPost.
Arceneaux’s fate is not entirely in the hands of her former employer. If a claimant can provide documentation of their health problems, the Georgia Labor Department has said it will take that into consideration in assessing an unemployment claim. While declining to discuss the specifics of an individual case, spokeswoman Kersha Cartwright said the agency would want to look at a claimant’s medical history if they refused work for that reason.
“If that is the reason for your separation, then we need to know those kinds of facts and would love to see some documentation with your claim,” Cartwright said.
Arceneaux followed the advice of public health experts when she quit her job, and she hopes she isn’t punished for it.
“If I lose the benefits, I don’t know how I’m going to survive,” she said.
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