June 22, 2020
The
guidance
provides answers to many questions about unemployment for workers and employers related to workplace health and safety protections, and caregiving.
“There are so many questions and concerns from workers and businesses around unemployment as the return to work begins,” said Labor Commissioner Robert Asaro-Angelo. “For example – no, a worker cannot choose to be unemployed, and no, a business cannot force an employee to work in an unsafe environment, particularly during a pandemic.”
“We’ve compiled the questions being asked most often by workers and employers and developed this informative and timely guide on the rights and responsibilities of each party as it relates to unemployment benefits during COVID-19,” explains Asaro-Angelo. Please see NJDOL’s
FAQs
.
Generally, claimants are entitled to receive unemployment benefits if they are unemployed through no fault of their own. While unemployed, they must be looking for work. There are two significant exceptions. If a claimant applies for benefits and meets these exceptions, they will receive UI benefits even though he did not become unemployed through no fault of his own; or is not able, willing, and available for work. The guidance explains how these legal principles interact with Pandemic Unemployment Assistance (PUA); an additional benefit program created by the CARES Act that provides benefits in a wide variety of COVID-related scenarios.
Every claim is decided individually, on a case-by-case basis, but these general principles apply:
Voluntary Quit for Good Cause Due to Health and Safety Concerns
An individual who quits with “good cause attributable to the work,” can collect UI benefits. One such example of good cause is where the individual quits because “working conditions are so unsafe, unhealthful, or dangerous as to constitute good cause attributable to such work.”
The burden of proof is on the claimant to prove that he quit for good cause, and it is a difficult standard to meet. Courts have held that “mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health” are not considered good cause. Rather, the working conditions complained of must be so intolerable to “give the individual no choice but to leave the employment.” Additionally, before quitting the employee is obligated to try to remedy the problem with the employer.
While in most cases a claimant cannot voluntarily quit a job and collect benefits, where a claimant can show “unsafe, unhealthful, or dangerous” working conditions, that were so intolerable that the claimant had “no choice but to leave the employment,” he could collect UI benefits. These determinations are highly fact-specific and are determined on a case-by-case basis.
During the COVID-19 pandemic, where a claimant alleges that he quit a job because of “unsafe, unhealthful, or dangerous” working conditions, NJDOL will consider such factors as:
- The employer’s overall actions to create a safer workplace (such as having an infectious disease preparedness and response plan; providing options to work from home; providing extra handwashing stations and break time for handwashing; providing additional sanitation and frequent cleaning of high-touch areas; providing personal protective equipment such as masks and gloves; limiting occupancy; and following social distancing guidelines).
- Compliance with guidance from the Occupational Safety and Health Administration, the Centers for Disease Control, and other relevant federal agencies.
- Compliance with guidance from the New Jersey Department of Labor and Workforce Development, Department of Health, New Jersey State Police, and other relevant state agencies.
- Compliance with guidance from industry groups and associations.
- Compliance with the Governor’s executive orders.
This list is not intended to be exclusive. NJDOL may consider additional factors and sources in
making its determination.
Refusing Suitable Work Due to Health and Safety Concerns
The second exception involves an individual who is recalled to work, or receives another offer of
employment, and declines it. As described above, the State’s UI system places a great emphasis on working and attempting to find work. Generally, if a claimant refuses an offer of “suitable work” without good cause, he cannot collect benefits for that week plus the 3 weeks immediately following. A claimant can refuse work that is not “suitable” and continue to collect benefits.
State law defines “suitable work” to include such considerations as “the degree of risk involved to health, safety and morals, the individual’s physical fitness and prior training, experience and prior earnings and employee benefits, the individual’s length of unemployment, prospects for securing work in the individual’s customary occupation and commuting distance.” While in most cases a claimant cannot refuse “suitable work” and collect benefits, where the work poses a high degree of risk to health and safety, he can refuse to accept the “unsuitable work” and continue to collect benefits.
The burden of proof is on the claimant to prove that the work was not suitable, and it is a difficult standard to meet. The claimant must show that the deficiencies are “so compelling so as to prevent the claimant from accepting work.” These considerations are judged subjectively, “with respect to the particular individual involved.”
Before refusing the work, the individual is obligated to try to remedy the problem with the employer. These determinations are highly fact-specific and are determined on a case-by-case basis.
During the COVID-19 pandemic, where a claimant alleges that prospective employment poses a high degree of risk to his health and safety and is therefore “unsuitable,” the Department will consider such factors as:
- The employer’s overall actions to create a safer workplace (such as having an infectious disease preparedness and response plan; providing options to work from home; providing extra handwashing stations and break time for handwashing; providing additional sanitation and frequent cleaning of high-touch areas; providing personal protective equipment such as masks and gloves; limiting occupancy; and following social distancing guidelines).
- Compliance with guidance from the Occupational Safety and Health Administration, the Centers for Disease Control, and other relevant federal agencies.
- Compliance with guidance from the New Jersey Department of Labor and Workforce Development, Department of Health, New Jersey State Police, and other relevant state agencies.
- Compliance with guidance from industry groups and associations.
- Compliance with the Governor’s executive orders.
This list is not intended to be exclusive, and the Department may consider additional factors and sources in making its determination.
Caregiving and Voluntary Quit or Refusing Suitable Work and the CARES Act
As described above, if a claimant voluntarily quits without good cause, or if he refuses an offer of “suitable work” without good cause, he is disqualified from collecting UI benefits. However, if a claimant voluntarily quits or refuses an offer of “suitable work,” and has been affected by the COVID-19 pandemic in one of the ways enumerated by the CARES Act, he could be eligible for benefits under the Pandemic Unemployment Assistance (PUA) program.
PUA benefits are equal to regular UI benefits (60% of a claimant’s average weekly wage to a maximum of $713 per week, and an additional flat amount of $600 per week through the end of July 2020). To qualify for PUA, a claimant must certify each week that he is not eligible for UI benefits under state law; is otherwise able and available to work; and is unemployed, partially unemployed, unable or unavailable to work because of the following COVID-related reasons:
- The individual has been diagnosed with COVID–19 or is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
- A member of the individual’s household has been diagnosed with COVID–19.
- The individual is providing care for a family member or a member of the individual’s household who has been diagnosed with COVID–19.
- A child or other person in the household for which the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of the COVID–19 public health emergency and such school or facility care is required for the individual to work.
- The individual is unable to reach the place of employment because of a quarantine imposed as a direct result of the COVID–19 public health emergency.
- The individual is unable to reach the place of employment because the individual has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
- The individual was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of the COVID–19 public health emergency.
- The individual has become the breadwinner or major support for a household because the head of the household has died as a direct result of COVID–19.
- The individual must quit his or her job as a direct result of COVID–19.
- The individual’s place of employment is closed as a direct result of the COVID–19 public health emergency.
- The individual meets any additional criteria established by the Secretary for unemployment assistance under this section.
If circumstances change and these COVID-related reasons no longer apply, the claimant would not be able to continue receiving PUA benefits.
Eligibility Determination
NJDOL unemployment agents examine each case and make eligibility determinations in accordance with the law, as well as health and safety guidance issued by federal and state authorities. As noted above, the standard for both refusing suitable work and voluntarily quitting with good cause are similar.
If an employee is found to be ineligible for unemployment benefits because they rejected an offer of suitable work, he or she must return any benefits collected after suitable work was offered.
Employers wishing to learn more about their rights regarding an employee’s unfounded refusal to return to work should click on
Tools for Employers
.
Stay safe,
Rich Higgins, CPA
Managing Principal - New Jersey Office
McCarthy & Company
Disclaimer: This alert is for informational purposes only and does not constitute professional advice. Information contained in this communication is not intended or written to be used as tax advice, and cannot be used by the recipient to avoid penalties that may be imposed under the Internal Revenue Code. We strongly advise you to seek professional assistance with respect to your specific issue(s).
