Law you can use: Returning to work during the COVID-19 pandemic

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Whether you’ve been working from home or laid off during the coronavirus pandemic, the decision of whether to return to the workplace pushes on the need for regular income and pulls at fears of the pandemic.

How do you decide? The details matter, and every situation is different, but these factors are important to consider in virtually every case.

Losing Unemployment Eligibility

Ohio unemployment eligibility depends in part on the worker being able and available for work. Under Ohio law, you will normally be denied unemployment if you refuse an offer to return to suitable work. What constitutes “suitable” work is determined on a case-by-case basis and depends heavily on the details. If you are called back to work in a similar position and doing similar duties as before the pandemic, then you will very likely have to return to work or lose your right to unemployment compensation.

However, there are exceptions. On June 16, 2020, Gov. Mike DeWine signed an executive order stating that a refusal to return to work will not prevent eligibility for unemployment benefits under the following circumstances:

  1. Your doctor recommended that you not return to work because you are in a high-risk category as identified by the Centers for Disease Control and there is no telework option.
  2. You are 65 or older.
  3. You have evidence of a health and safety violation by your employer that prevents you from social distancing or safe hygiene practices at work.
  4. Your doctor ordered you to quarantine due to exposure to the virus.
  5. You are staying home to care for a family member who has the virus or who is in quarantine under a healthcare professional’s order.

Additionally, if the offer to return to work is sufficiently different from prior work (significant differences in wages, commute time, job duties, etc.), then the position might not be considered suitable, and you would have a right to refuse to return while continuing to receive unemployment benefits. The big but here is that you could be denied benefits initially and then have to appeal to try and get that determination reversed – a process that could take months with no benefits paid in the meantime.

If you think the job you’ve been offered might be unsuitable, you should consult with an employment lawyer for guidance before refusing the job.

Health Conditions and Returning to Work

If you have a health condition that makes you high risk in the event you contract coronavirus, unemployment might not be your only option. A number of state and federal laws apply here, and the analysis gets extremely fact-specific and personal. Again, consider consulting with an employment lawyer before making a decision that can’t be undone.

Here are some things to consider.

  1. If you have a serious health condition of the sort that makes you eligible for leave under the Family Medical Leave Act (FMLA), you might be able to buy time using that federal law without losing the right to return to your job at the end of your leave. FMLA leave is good for up to 12 weeks but is usually unpaid. Your employer can require you to provide a doctor’s certification of your need for leave.
  2. If you have a legally recognizable disability, you might be able to seek temporary continued leave or work-from-home privileges as a reasonable accommodation. Again, your employer will likely require you to provide a doctor’s note explaining your need to telework or stay home. Your employer can also offer a different accommodation of its choosing.

Be aware that if you are on FMLA leave, you will not be eligible for unemployment because you are not available for work. If you are unable to work due to a disability based on your doctor’s order to stay home, you may still qualify for unemployment under certain circumstances.

It is also important to note that there is no real legal protection for you to stay home from work based on the risk that you could bring coronavirus home to a member of your household who is in a high-risk category. FMLA leave is not available based on someone being at risk either. However, if a person has a serious health condition and you need to stay at home to care for them, FMLA leave might be available.

If Day Care and Schools are Still Closed…

Primary caregivers who are unable to work or telework because of the need to care for children whose schools or daycare centers are closed due to the pandemic have a few options.

Pandemic Unemployment Assistance (PUA): If you truly cannot get work done at home because your child needs constant monitoring (for example, a very young child), then you are likely eligible for PUA unemployment.

Emergency FMLA (EFMLA):  Parents may also qualify for EFMLA if they have been employed for at least 30 days, and their employer has between 50 and 500 employees. Employers with fewer than 50 employees are exempt from this expanded FMLA if permitting the leave would jeopardize the company’s viability. This limited expansion of FMLA applies through the end of 2020, and the leave of absence includes up to two-thirds pay after the first 10 days. EFMLA is good for up to 12 weeks of leave.

Emergency Paid Sick Leave: Parents in this situation may also qualify for emergency paid sick leave under a law effective through the end of 2020. Qualifying employees are entitled to two weeks’ pay at two-thirds of their normal rate.