By the Seay Management Consultants Team
The FFCRA and associated legislation were passed by Congress so quickly that many of the employment and HR issues were unclear, ambiguous, or, in some cases, unaddressed. Sissy Egan of the Seay Team has observed, with great insight, “They created the rules but are still working on the rule book!” In the past couple of weeks, however, the Department of Labor has clarified some of these issues and, today, we have a better understanding of how management applies these new benefits to specific situations. The three specific benefits are (a) up to 80 hours of sick pay for employees who experience certain COVID-19 events, (b) an additional 10 weeks of extended FMLA for employees with children whose school or daycare have closed, and (c) extended unemployment compensation, for those employees who qualify.
One of the strangest and most unusual situations revolves around employees who refuse to come to work owing to one of two reasons –
- the employee who is afraid of contracting the virus, even though he or she does not actually have it and has no symptoms of it,
- the employee who claims, correctly, that he or she can receive more money on unemployment than by working.
This anomaly is due to the award of an additional $600 of federal unemployment compensation, which is added to the state unemployment compensation. In Florida, for example, a person can receive a state maximum of $275 per week plus an additional $600 per week from the federal government, for a total of $875 per week – all for not working! A New Jersey employee can receive $713 in state funds and an additional $600 in federal funds, for a total of $1313 – all for not working! Let’s take a look at the situations one at a time.
Case #1 – Fear of Coming to Work
In the first case, the regulations are clear that the regulations and the sick pay benefits apply only to those employees who qualify for one of the six COVID-19 events, as specified on the FFCRA poster. Neither fear of contracting the virus nor being in a non-specific “at-risk” group qualifies an employee for the sick pay or extended FMLA benefits. If an employee refuses to come to work under either of these circumstances, this is a voluntary quit on the part of the employee, with no good cause attributable to the employer. The employee should not be eligible for unemployment benefits.
On the other hand, on the basis of Best Practices, a specific “at-risk” employee situation could fall under the ADA regulations so it may be a good idea to try to make “reasonable accommodation” to high-risk employees, such as moving the employee to a different job or location or allowing the employee to use accrued vacation time. Also, it is possible that an employee may qualify for unpaid FMLA, owing to a serious health condition.
Special Alert – Washington State has issued regulations requiring specific attention to high-risk employees when requested by the employee, and continuation of health insurance until the employee is “deemed eligible” to return to work. Some other more progressive states may follow suit. We will continue to follow this phenomenon but do not expect it will be widespread.
Case #2 – Refusing to Come to Work Because of High Unemployment Compensation
An employee does not have the right to refuse to come to work, just because he or she can receive more money from unemployment compensation than from actually working. If you have work for the employee, and if the employee refuses to come to work, then this is a voluntary quit on the part of the employee, with no good cause attributable to the employer. Employees who refuse to work under these circumstances are not eligible for unemployment compensation. You should inform the employee of this fact and, if he or she continues to refuse to come to work, you should notify your local unemployment office. On a level playing field, this employee would not have a job at your company and would not receive unemployment compensation. As a matter of information, the additional $600 expires on July 31, 2020, unless Congress extends it. Laura Ingraham dealt with this issue at length on her television show of April 20th and it’s getting the attention of a number of observers and commentators, so there is some talk of making an adjustment at some point. However, it is good to recall the advice of the ancient Romans – “The mills of the gods grind slowly.”
Please contact your Seay Management Consultant if you have any questions about how the FFCRA and associated regulations are affecting your employees. We appreciate having you as a friend and client of our firm.