We live in strange times indeed. When the coronavirus pandemic began, federal and state authorities tried to address various health and economic issues that came with it. As businesses closed in response to public health concerns and droves of employees were furloughed or laid off, steps were taken to address the emerging crisis. The Oklahoma Employment Security Commission (OESC) waived the normal one-week waiting period for displaced workers to file a claim for unemployment benefits. It also waived the “work search requirement due to the COVID-19 pandemic.” Plainly, the OESC did not want people looking for work when state and local authorities wanted people at home.

At the same time, the federal government passed the CARES Act, which provided an array of benefits including an additional $600 per week in unemployment benefits to persons who qualified for state unemployment benefits through July 31, 2020. There are many wonderful things about the CARES Act, but as with all legislation passed quickly to address an array of issues across the entirety of the United States, there are inadvertent consequences. We are facing one of them.

Governor Stitt is hoping Oklahoma businesses will reopen soon. Whether businesses open on May 1 or in the weeks or months following, those businesses will need workers, some of whom are receiving unemployment benefits which exceed the wages they were earning prior to job loss.

Hence, the question: As businesses begin to reopen, will all of the employees return?

There will be competing issues to be sure. Will employees make more money on unemployment or returning to work? Will the employees feel safe returning to work or will they feel it is a health risk to do so? If they do not return to work, will they remain eligible for their current unemployment benefits?

These are questions that many businesses are facing and for which there are no clear answers. Here are some considerations.

Must a Furloughed Employee Accept Your Offer to Return To Work?

Prior to COVID-19, to be eligible to receive unemployment benefits, the law provided that the unemployed person must seek and accept suitable work.

While, during the pandemic, the OESC does not require the unemployed person to “seek” work, it has not addressed squarely whether that person must “accept” suitable work if offered. [Note: We have submitted a question to the OESC for guidance on this, but have not yet received any official word.]

What if the Furloughed Employee Feels Returning to Work will Compromise their Health or the Health of their Family?

If you offer the furloughed employee their job as you reopen, the employee may decline to return for fear that returning to work would pose a health risk to them or their family. In this case, it would be their argument that the job is no longer suitable. Most employers will deem this a voluntary quit, but that may not be the end of it.

There are two provisions in the law which could apply. The law allows a person to voluntarily quit for “good cause” and still be eligible for unemployment benefits. Good cause includes a:

“working condition that had changed to such a degree it was so harmful, detrimental, or adverse to the individual’s health, safety, or morals, that leaving the work was justified.”

The law also allows a person to quit for compelling family circumstances and remain eligible for unemployment. These compelling family circumstances include:

“a. if the claimant was separated from employment with the employer because of the illness or disability of the claimant and, based on available information, the [OESC] finds that it was medically necessary for the claimant to stop working or change occupations, [or]

b. the claimant was separated from work due to the illness or disability of an immediate family member.”

Each of these situations would involve very fact specific inquiries as to why the person quit, but it is certainly possible a person could refuse to return to work (could quit) and remain eligible for the current unemployment benefits. At this time, given the flood of claims the OESC is handling, we just do not know the outcome of any of these cases.

What Should Businesses Do?

That’s a loaded question, and no newsletter can ever answer it. We want you to have a general understanding of the issues you may face as you begin to reopen or expand your operations.

One nice thing to remember (and it’s good to end on a nice note) is that the OESC has waived benefit wage charges for unemployment claims directly related to COVID-19. We discussed this some weeks back, but it bears repeating. The OESC Order states

“all benefit wage charges to experience rated employers for allowed claims of unemployment benefits that are directly related to the COVID-19 pandemic shall be waived. An attempt will be made to prevent charge notices from being mailed to employers on COVID-19 claims, but if an employer does receive a benefit wage charge notice on a COVID-19 claim, the employer should timely protest the charge and give information about the nature of the claim. Reimbursing charges to reimbursing employers shall not be waived and must be paid timely.”

This Order remains in force through December 31, 2020.

Many questions linger as to the rights of persons to remain eligible for unemployment benefits as businesses reopen. This continues to be a challenge to some businesses attempting to staff their operations and to the State who continues to have record numbers of claims each week. But businesses can take some comfort that these unemployment claims will not adversely affect their experience rating going forward.

By Kristen L. Brightmire, kbrightmire@dsda.com