Ohio parents have a lot to think about when deciding whether and when to go back to work during the Coronavirus pandemic

posted by David N. Truman | June 03, 2020 in Employment Law

As schools finish up over the next few weeks, and many businesses and daycare centers reopen, parents across Ohio will face difficult decisions about how or whether to return to work. 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.

Unemployment compensation: Most workers who refuse to return to work will lose unemployment.

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.

You can refuse “unsuitable” work and still maintain a right to unemployment.

However, there are exceptions (aren’t there always?). 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 a few months with no benefits paid in the meantime.

As an example, if you worked as a registered nurse at a hospital around the corner from your apartment and were laid off for lack of work when the hospital stopped doing elective procedures, an offer to return to work doing nursing assistant duties in an affiliated nursing home 30 miles away, at a 40% pay cut, might be considered “unsuitable”, and you might be OK to refuse it.

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.

Refusing to return to work due to concerns about the Coronavirus.

If you were furloughed as a result of the Coronavirus pandemic and you are generally fearful of returning to work because of the risk of contracting COVID-19, this is likely not going to be a suitable reason to refuse to return. In this circumstance, it is highly likely that your unemployment benefits would be cut off.

But, if you have a health condition that makes you high risk in the event you contract Coronavirus, you have a legal issue that might permit you to refuse to return to work, at least in the short term. 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 unless you also use your own paid time off. 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 continued leave or temporary work-from-home privileges as a reasonable accommodation, if a temporary leave of absence would improve your situation. 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.
     
  3. You may be eligible for Pandemic Unemployment Assistance (PUA) if you suffer from a condition, such as a compromised immune system, that would greatly increase the risk to you if you were exposed to the virus at work and your doctor advises you to self quarantine. In this case, you should get your doctor’s order in writing.

Be aware that if you are on FMLA leave, you will not be eligible for unemployment because you are not available for work.

Someone you live with is high-risk for Coronavirus.

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. Employment protections for workers who are disabled are for the employee, not for family. FMLA leave is not available based on someone being at risk either, although if a person has a serious health condition and you need to stay at home to care for them, FMLA leave might be available.

Your child’s daycare or school is not open, and you need to stay home to care for them.

Primary caregivers who are unable to work or telework because of the need to care for children whose schools, daycare centers or summer camps 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 up to two weeks’ pay at two-thirds of their normal rate up to $2,000 total.

As the school year ends for the summer, and so long as daycares and summer camps stay open, the need to care for young children will no longer provide a basis for PUA, EFMLA, or Emergency Paid Sick Leave for most parents, despite the continuing need for safe and affordable child care.

David Truman is an attorney with Elfvin, Klingshirn, Royer & Torch in Cleveland. He is licensed to practice law in Ohio. If you have questions about your eligibility for unemployment compensation, paid time off, family leave, or other employment law issues you can call David at 216-382-2500.

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