My employee doesn’t feel safe at work and wants to know if s/he can collect unemployment instead.

If you haven’t had this conversation yet with one of your current or furloughed employees, you inevitably will.

So, what do you say?

Well, I can’t begin to give you the rules for all 50 states and the District of Columbia. But, I can share this recent guidance from the State of Jersey. I’m guessing that most other states may have similar requirements for an individual to collect unemployment compensation; namely:

1. the individual became unemployed through no fault of their own; and
2. the individual is able, willing, and available for work.

But, what happens when an employee voluntarily quits because s/he is concerned about health and safety conditions at work? Well, if your state is anything like New Jersey, lucky you! quitting voluntarily generally disqualifies an individual from collecting unemployment compensation. But, there are some exceptions to that rule.

One exception is whether the claimant can establish that s/he quit or refuses an offer of employment due to “unsafe, unhealthful, or dangerous” working conditions that were so intolerable that the claimant had no other choice. Ordinarily, this is a high bar. But, in the current COVID-19 environment, the State of New Jersey will consider five factors:

1. The employer’s overall actions to create a safer workplace (such as having an infectious disease preparedness and response plan; providing options to work from home; providing extra handwashing stations and break time for handwashing; providing additional sanitation and frequent cleaning of high-touch areas; providing personal protective equipment such as masks and gloves; limiting occupancy; and following social distancing guidelines);
2. Compliance with guidance from the Occupational Safety and Health Administration, the Centers for Disease Control, and other relevant federal agencies;
3. Compliance with guidance from the New Jersey Department of Labor and Workforce Development, Department of Health, New Jersey State Police, and other relevant state agencies;
4. Compliance with guidance from industry groups and associations; and,
5. Compliance with the Governor’s executive orders.

Now, let’s bring the CARES Act to the party. A claimant can be ineligible for state unemployment compensation but still receive benefits under the Pandemic Unemployment Assistance (“PUA”) program. PUA benefits are equal to regular UI benefits (60% of a claimant’s average weekly wage to a maximum of $713 per week, and an additional flat amount of $600 per week through the end of July 2020).

To qualify for PUA, a claimant must certify that s/he is not eligible for UI benefits under state law; is otherwise able and available to work; and is unemployed, partially unemployed, unable or unavailable to work because of one or more of these COVID-related reasons, including that the individual had to quit his/her job as a direct result of COVID-19.

So, what do you say when an employee asks about unemployment compensation? What you don’t do is promise the employee unemployment compensation benefits. Bad move. That decision is outside of your control.

The best you can do is help the employee with the application process and then take a page out of your lawyer’s playbook and tell the employee, “It depends.” 😉