Nevadans who refuse to return to work could lose unemployment benefits

When businesses begin reopening on Saturday, customers will get to decide for themselves whether they are comfortable dining at a restaurant or browsing a clothing store. But for the employees of those businesses, the act of returning to public interaction may not feel like much of a choice at all.

People who reject the opportunity to work are at risk of losing their unemployment benefits. If enforced, that pre-pandemic rule will force people to return to workplaces even if they would rather continue to stay-at-home out of concerns for their health or the health of their families.

Nevada has been nearly silent on the issue.

A spokesperson for the Department of Employment, Training and Rehabilitation (DETR) was unaware of the issue when asked about it by the Current early Thursday and said they would have to look into it and get back with information. They did not do so by publication time.

Gov. Steve Sisolak was asked about the issue by a Review-Journal reporter during his Thursday press conference. Sisolak called the issue “complicated” and said the state is bound by rules set by the U.S. Department of Labor. 

“We are working with the federal delegation,” said Sisolak. “I want people to feel safe. At the same time, businesses are anxious to open.”

On its website, the Department of Labor states: “As a general matter, individuals receiving regular unemployment compensation must act upon any referral to suitable employment and must accept any offer of suitable employment. Barring unusual circumstances, a request that a furloughed employee return to his or her job very likely constitutes an offer of suitable employment that an employee must accept.”

It notes that a person may still be eligible if they could identify “some other qualifying circumstance outlined in the CARES Act.” The CARES Act does include some provisions that allow for the loosening of unemployment rules but most involve being directly affected — such as living with someone who’s been diagnosed or being told to self quarantine by a doctor.

“Voluntarily deciding to quit your job out of a general concern about exposure to COVID-19 does not make you eligible for (Pandemic Unemployment Assistance)” reads another answer on the Department of Labor’s website.

Nathan Ring, an employment lawyer in Nevada, says there has never been a comprehensive list of what is and what isn’t an acceptable reason for turning down employment: “Good cause is not defined in the law and has always been a case-by-case basis,” he said in an email.

The greater the impact, the better claim someone will have.

“I would think that if employees with greater risk of death or serious illness from contracting the virus (for example those currently undergoing cancer treatments or those with COPD and other lung maladies) were to refuse to return to work because of fear of contracting COVID, it would lean more toward being good cause.”

But Ring adds that a person’s concerns would likely be weighed against the safety precautions in place at their workplace.

In other words, it can get complicated quickly.

One clear directive from labor departments and employment lawyers alike is that making more money on unemployment than through a job is not a valid excuse for not having a job.

Sisolak on Thursday noted that “a lot of people” will go back to work and make less than what they could be receiving currently through unemployment. Nevada caps unemployment benefits at around $470 per week but through the CARES Act an additional $600 per week is being added to unemployment paychecks distributed between April 4 and July 25.

“These are difficult situations,” said Sisolak. “We’re working through those problems.”

It seems unlikely any solutions will come before the first wave of businesses begin to reopen as part of phase one on Saturday. Restaurants will be allowed to provide dine-in options, though they must require all employees to wear face masks, limit occupancy to 50 percent of what’s allowed by fire code, and keep seating at least 6 feet apart. Similarly, retail is allowed to reopen at 50 percent occupancy. Barber shops, hair salons and nail salons are allowed to operate by appointment only and maintain social distancing between customers.

While the social distancing guidelines and safety requirements are designed to minimize the transfer of the coronavirus, nothing beyond pure isolation is foolproof. Sisolak emphasized that during his remarks Thursday, urging people to continue to shelter in place whenever possible: “Coronavirus is still with us.”

He even directed specific comments to people who will soon return to work and currently live with vulnerable people: “You have to take new precautions when you get home. Take the precautions at work. Take extra precautions when you get home.”

Sisolak did not elaborate on what those extra precautions might be.

Casinos and other gaming establishments have not been granted permission to open. However, the Gaming Control Board on Thursday approved the minimum safety measures and social distancing guidelines that will be used when they do reopen.

The Culinary Union and its parent union UNITE HERE last week proposed stricter guidelines and additional protections for workers. Among them, they are demanding that “any employee electing not to accept work should be considered to be on involuntary layoff” rather than having quit and that “they should be permitted to return to work at any time according to regular scheduling practice.” They also want to ensure that no employee should be disciplined for calling out sick when experiencing COVID symptoms or having childcare issues due to school closures.

Culinary spokesperson Bethany Khan said the union is negotiating with the casino companies to add these protections (and a long list of others) to their contract. But “no current provisions exist” to protect workers.

Public pressure to reopen the economy has been mounting both in Nevada and across the country. Individual businesses and industry leaders alike have argued they can do so safely. But others feel states are moving too quickly and inviting a second wave that could be deadlier than the first.

More than 76,000 deaths have been attributed to COVID-19, the disease caused by the novel coronavirus. Nevada has reported 293 deaths and 5,766 positive cases so far, according to data provided by the state.

What’s happening elsewhere?

Across the country, other states are already grappling with the issue of employees who wish to remain at home for health reasons. On one end of the spectrum, the Alabama Department of Labor issued a press release telling furloughed workers that refusing to return to work when called back would potentially disqualify them from receiving unemployment benefits. The department also encouraged employers to report anyone who declined to return to work.

On the other end, Colorado Gov. Jared Polis issued an executive order directing the state labor department to draft emergency rules addressing return-to-work issues. The Colorado Department of Labor and Employment complied, releasing rules that state an employer cannot compel a vulnerable individual to return to work if their work requires in-person work near others. The same leeway is also given to workers who reside with a member of a vulnerable group.

Texas Gov. Greg Abbott and the state’s workforce commission announced similar guidelines protecting people over the age of 65 and people who live with them.

In Georgia, state Rep. Dar’shun Kendrick sought answers from the labor department and received a response confirming that the exceptions are limited.

“I am NOT satisfied with the response,” Kendrick said in an email to the Georgia Recorder, one of the Current’s sister publications. “I am disappointed that a valid fear of the virus is not a reason under which they will consider continuing unemployment benefits and that ‘lack of PPE material from the employer’ was not listed as a valid excuse.”