Unemployment benefits and offers of work in the COVID-19 era

By Jack E. Cohoon, Esq.
Attorney at Law

With the loosening of COVID-19-related restrictions, some employers are reopening and recalling their employees back to work. Employees may wonder whether they will lose their unemployment insurance benefits if they refuse their employers’ offer of work.

Under normal circumstances, a worker is ineligible for benefits for failure to accept work if the S.C. Department of Employment and Workforce finds that the worker has failed, without good cause, to accept available suitable work when offered to him by the employment office or an employer. S.C. Code Ann. §41-35-120(5).

Fortunately for workers, the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) expands eligibility for jobless benefits to cover employees who are unemployed, unable to work, or unavailable to work for a variety of reasons related to COVID-19. These include:

  1. You’ve been diagnosed with COVID-19 or are experiencing symptoms of COVID-19 and are seeking a medical diagnosis.
  1. A member of your household has been diagnosed with COVID-19.
  1. You are providing care for a family member or a member of your household who has been diagnosed with COVID-19.
  1. You are the primary caregiver for a child who is unable to attend school or another facility because the school or facility has closed due to COVID-19, and the school or facility is necessary for you to work.
  1. You are unable to reach your place of employment because of a quarantine imposed as a direct result of COVID-19.
  1. You are unable to reach the place of employment because a healthcare provider has advised you to self-quarantine due to COVID-19 concerns.
  1. You are scheduled to start employment and could not or are unable to reach the new job as a direct result of COVID-19.
  1. You have become the breadwinner or major support for your household because the head of the household has died as a direct result of COVID-19.
  1. You quit your job as a direct result of COVID-19.
  1. Your place of employment is closed as a direct result of COVID-19.

These CARES Act provisions cover many scenarios in which an employee may not be able to return to their job. For example, employees with compromised immune systems who have been directed to self-quarantine by healthcare providers due to the risk of exposure to COVID-19 may qualify for continued benefits even if they turn down an offer of work. The key piece of evidence in this scenario would be a statement from a healthcare provider that the employee has been directed to self-quarantine.

Another common scenario arises for employees who are the primary caregivers of children whose school or daycare centers are closed due to COVID-19. They may also be able to turn down an offer of work and maintain eligibility for unemployment benefits. Documentation is important for this scenario, as well.

There is at least one frequent situation that is not addressed by the CARES Act: Employees who are concerned about the safety precautions taken by their employers to protect their health. The Department does not enforce workplace safety standards—that is the job of the Occupational Health and Safety Administration (OSHA) and other agencies. However, the Department will consider whether the claimant has good cause to refuse an offer of work based on the degree of risk to health and safety. S.C. Code Ann. § 41-35-120(5). The burden is on the claimant to prove this.

Showing cause for not returning to work

It can be very difficult to show good cause for refusing to return to work due to safety concerns. Employees who have serious reasons to be concerned about the safety of returning to work due to COVID-19, and none of the CARES Act scenarios apply, then they should do all they can to document the safety concern. If there are specific guidelines from OSHA or other regulators which the employer is violating, the claimant should be prepared to show evidence of those violations to the Department. Claimants should also show that they have done all they can to resolve the safety issues, including raising the concerns to the appropriate person at the employer and making a complaint to OSHA or another regulatory agency. Even then, it can be challenging to show good cause for refusing an offer of work.

After filing a claim for jobless benefits, make sure to follow the directions given to you by DEW when you file unemployment, or you may lose your benefits. Claimants must continue to file their weekly claims, complete any required work search activities, ensure that the Department has their correct mailing address, check their mail regularly, and respond promptly to any request for information. Evidence to support a reasonable refusal of an offer work, such as a letter from a healthcare provider, should be uploaded to the claims portal as early in the process as possible.

One of the biggest pitfalls for claimants is not understanding the very tight appeal deadline for initial determinations. You must appeal within ten calendar days of the Department mailing you the determination. The deadline begins to run when the Department places the determination in the mail to you, not when you receive the determination. The appeal can be filed through the claims portal, by fax, or by mail. If you receive an unfavorable determination, you should appeal immediately.

After you appeal, you will receive a notice for a telephone hearing. You should follow the instructions on the hearing notice to send any evidence you may have to both the hearing officer and the employer at least 24 hours before the hearing. At the hearing, you can present witnesses, ask for the consideration of your documentary evidence, and explain why you believe the previous determination was in error.

The experienced employment attorneys at Burnette Shutt & McDaniel may be able to help you with your case. Call us at 803.850.0912 or visit burnetteshutt.law to schedule an appointment. This article is focused on South Carolina law. The law and procedure of unemployment benefits varies from state to state, so this information may not all apply to to your situation.

Jack E. Cohoon is Special Counsel at Burnette Shutt & McDaniel. He has nearly 14 years of experience helping clients find solutions to employment issues and other complex legal problems, including issues arising from previous natural disasters such as the 2015 floods and Hurricane Matthew. He has successfully represented clients in trial and appellate courts and before many state and federal administrative agencies.

Information or interaction on this page should not be construed as establishing a client-attorney relationship or as legal advice. For advice about your specific situation, please consult one of our attorneys.