When Gov. Bill Lee issued a statewide order March 22 limiting Tennessee restaurants to take-out, drive-thru and delivery services only, he intended to strike a blow against the growing COVID-19 pandemic.
“The pandemic has created both an economic and a health crisis, and our response must continue to address both aspects,” Lee said in a statement. “Our goal is to keep the public, especially vulnerable populations, safe while doing everything possible to keep Tennesseans in a financially stable position.”
On April 2, Lee tightened restrictions by requiring all Tennesseans to stay home unless carrying out essential activities.
Expanded unemployment insurance benefits made available through the Coronavirus Aid, Relief and Economic Security (CARES) Act, which President Trump signed into law March 27, softened the economic blow for Tennessee’s restaurant workers.
Now these same workers are facing a new dilemma. As Lee lifts restrictions on restaurants – which on May 22 will no longer have their capacity restricted – and shifts the state’s COVID-19 attack strategy to focusing on social distancing best practices, restaurants are reinstating their employees.
This creates a startling possibility: A worker who does not yet feel safe being in public might be required to return to their job or face losing their unemployment benefits, as federal guidelines the Tennessee Department of Labor and Workforce Development follow state an individual must be willing and able to work to receive the benefits.
“Not returning to work when there is available employment may be considered a refusal of work and could potentially disqualify claimants from receiving Tennessee Unemployment Compensation benefits,” reads the Department of Labor and Workforce Development’s website.
The word “may,” however, suggests there are cases in which this might not happen, says Chattanooga-based employment law attorney Donna Mikel.
Mikel discusses the many threads of this legal quandary in a conversation with the Hamilton County Herald.
The law seems clear: People can lose their unemployment if their employer reopens but they don’t want to work because they don’t feel safe.
Mikel: “There’s a lot of tension between the different laws that have been passed and people’s motivations. Employers want to keep people on the payroll because they have received payroll protection funds. They have to keep people on the payroll or else parts of the money won’t be forgivable.
“On the flip side of this issue, some people are earning more on unemployment than they earn in real life. With the Tennessee cap and the federal supplement, people can earn $875 a week. That translates to about $44,000 a year. So, there’s tension between employers who want people to come back to work and people who might feel some incentive to stay out longer, especially if they’re concerned about safety.’’
Do you believe safety is still a valid concern?
“I do. I’m in North Georgia, which opened up more quickly than I thought was perhaps wise. But it’s a tough call. I think people still have to be careful. I’m being careful. Of course, a lot of people who are deemed essential have been working all along, so it’s difficult to find the right time.’’
That’s a good point. There might be people who haven’t felt safe all this time – such as health care workers and grocery store workers – but they have still been going to work.
“Health care workers signed up to be exposed to germs and illness. Grocery store workers didn’t.’’
Would that play in the employer’s favor?
“What plays most in the employer’s favor is how the unemployment system is traditionally set up. The general rule has always been that if there’s work available for you, you have to take it or you’re not eligible for unemployment. The Cares Act changed that to some degree by allowing people to qualify for unemployment even if they haven’t been fired, and they don’t have an obligation to look for another job.
“But I’ve also seen guidance on the Department of Labor’s website that makes it clear that unless you meet one of the exceptions laid out in the Cares Act, once your employer has reopened and work is available to you, you have to take it even if you think it might be too early or have generalized safety concerns.’’
Would it be difficult to challenge this guidance in court?
“Yes. The unemployment tribunals write their own rules, so if they give guidance, then people need to follow it. But the Cares Act does carve out exceptions for people who are eligible for paid leave or unemployment, including people who have been diagnosed (with COVID-19), people who have a family member who’s been diagnosed, or people who have a doctor who says because of their condition or impairment they have to quarantine themselves. This includes cancer survivors and people who have lupus or an immunodeficiency. You also have people with small children who, because school systems are closed, have to be home.
“I believe those people are still going to be eligible for unemployment even if their place of employment reopens. And I believe the employers are going to be incentivized to let those people stay on unemployment because if those people come back, it shifts the financial responsibility to the employer.
“Perhaps if there’s a safety threat, like if you work in a factory and they’re not doing any distancing, they’re not permitting masks, they’re not sanitizing and they’re letting sick people come to work, then you might be able to file a complaint under OSHA to protect you.
“But besides that type of very acute danger, you’re not going to be protected from refusing to work. In general, if your workplace reopens and if you don’t meet one of those exceptions, then if your employer says that you have to come back to work, then you need to go back to work.’’
Have people been calling you about these issues?
“I don’t believe we’ve had calls from people related to things reopening, but we have had calls from people who feel like they have been asked to participate in things that are unsafe, or they reported safety concerns and faced retaliation. We’ve had calls from pretty high-ranking people from institutions in our community that shouldn’t be doing things that risk safety right now.’’
What’s a restaurant worker to do if they’re concerned about their health but their employer says, “You’re scheduled to work Friday night?”
“If they just have a generalized concern about safety, then they need to decide whether they want to go back to work or have no income because they probably are going to lose their unemployment benefits. If they do fit one of these exceptions, then they’d probably be protected, or if they do go back to work, they might have some paid leave rights.’’
How are you keeping up with the constantly shifting guidance?
“There are a lot of unknowns, so it’s tough to predict what courts are going to say. For example, we’ve received a lot of calls from employees who have employment contracts and their pay has been cut or they’ve been furloughed and these actions have violated their contracts. So, it’s tough to predict what kind of grace the courts are going to give to companies when they’re deciding between violating a contract and going out of business.
“I believe most people are trying to watch out for each other, but there have been some bad situations, and it’s definitely a time when we’ve been saying, “I don’t know the answer” and “I can’t tell you for certain” a lot more than we have had to in the past.’’
Contact Mikel at 423 541-5400.