Last Updated On: 5/23/2020 10:07:59 AM
I was laid off in March when the shutdown started. I’ve been on unemployment since then. Now the company wants to hire me back at my old job, but they haven’t done anything to protect employees against coronavirus infection. Will the state cut off my unemployment benefits if I refuse to take the job?
No, not as long as you “reasonably and in good faith believe” that doing the work “would jeopardize . . . health and safety.”
That’s what the Supreme Court of West Virginia said in 1987, in a case called Peery v. Rutledge. Every member of the Supreme Court agreed with that decision. That case is still in effect, over thirty years later.
In the Peery case, the employee worked his normal shift doing physical labor on the loading dock. When he was ready to knock off and go home, the boss unexpectedly asked him to work the next shift as a truck driver. The route to drive would have been three hours over a steep mountain, on a winding two-lane road, in the middle of the night, in January. He said he was too tired, and might not be able to stay awake after working the first shift. He refused the overnight shift. The next day the company fired him.
The West Virginia Supreme Court said Mr. Peery was entitled to get unemployment benefits. The court said the key was that he “reasonably and in good faith believe[d] that performance of the job assignment would jeopardize the claimant’s own health or safety or the health or safety of others.”
So all someone has to do is say that they don’t feel safe doing the job?
No, no, no, it’s not that easy or simple. There are two pieces to understand.
First, the employee’s concern about safety has to be “reasonable and in good faith.” That means the question isn’t whether this one employee feels worried, even when others don’t. Instead, it means that any “reasonable” person in the same circumstances would have the same concerns.
It will be up to the worker to provide evidence to show that her fear was “reasonable” in the circumstances. If the claimant cannot provide adequate evidence of a reasonable health or safety concern, then unemployment benefits will not be paid.
Second, the company will be given the chance to present evidence that it had taken “reasonable steps” to protect employees against the health or safety problem. If the employer had taken reasonable steps, then unemployment benefits will not be paid.
I know the company has taken some steps, like requiring employees to wear masks. But I don’t think that’s enough. At my old job we had to work really close to each other. If we still have to do that, can I lose my unemployment if I’m not willing to work under those conditions?
Every case has to be decided on its own facts. The agency will have to decide whether the steps taken by the company were “enough” (claimant loses); or “not enough” (claimant wins).
One example might be the meat packing plants we’ve heard so much about in the Midwest. Some companies have put plastic barriers between workers, but they’re still working almost shoulder-to-shoulder. Some companies require employees to wear masks, while others don’t.
All of those things will go in the mix as the West Virginia agency decides whether a claimant’s health or safety fear is reasonable (claimant wins), or whether the company has taken reasonable safety steps (claimant loses).
What’s important here is to know that West Virginia has a good strong rule that protects claimants who have a “reasonable and good faith” belief that performing the job would be unsafe.
I have some of the high risk factors that would make COVID-19 extremely dangerous for me. Does that make a difference?
Yes, absolutely. What may be a “reasonable” protection for a person with a low risk of harm may not be reasonable for a person with a high risk of harm if infected.
According to the CDC, here are the conditions that put people at “high risk of severe illness:”
- People 65 years and older
- People who live in a nursing home or long-term care facility
- People of all ages with underlying medical conditions, particularly if not well controlled, including:
- People with chronic lung disease or moderate to severe asthma
- People who have serious heart conditions
- People who are immunocompromised
- Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications
- People with severe obesity (body mass index [BMI] of 40 or higher)
- People with diabetes
- People with chronic kidney disease undergoing dialysis
- People with liver disease
Think of two people walking on a gymnastics “balance beam.” The first person’s beam is 12 inches above the floor. The second person’ beam is 25 feet above the floor. They may moth have the same chance of falling, but one of them has a much higher risk of bad outcome! The steps reasonable for the first person (with low risk of bad outcome) may not be so reasonable for the second person (with high risk of bad outcome).
I’ve been offered a job in a business that’s reopening. I don’t know what COVID-19 safety precautions the business has taken. What should I do?
Talk to the person who offered you the job. Or talk to the HR person. Ask about the working conditions. Ask what the company will do to protect employees from COVID-19 infection. If there are specific protections you think the company should provide, ask about them. Find out what the company has done (or will do) to make the workplace safe.
Where can I find information about what the employer should do to make the workplace safe?
Start with information specifically written for West Virginia. The Governor’s Office has published guidelines for different types of businesses, about what steps they should take. For example, you can find guidance for restaurants, funeral Homes, barbershops and personal care salons, retail stores, churches, and many more. You can find these on the Governor's website at West Virginia Strong- The Comeback.
The federal Centers for Disease Control (CDC) has also published guidance for different types of businesses. On the CDC web site, look at:
All of these can give you a better understanding of what steps employers should be taking to best protect the health and safety of employees and customers. Think about which ones are most important for you and your specific conditions.
Is the employer trying to hire when it has not followed the health and safety recommendations? That will be powerful evidence that your concerns are reasonable.
I have to take a public bus to get to the job I’m being offered. I’m worried about getting COVID-19 from other on the bus. Will I be able to get unemployment benefits if that’s the reason I don’t take the job? No. To get benefits your safety concern must be based on something the employer can control. The employer is “at fault” when it fails to take protections it could have implemented.
The employer has no control over conditions on the public bus. The employer can’t require bus riders to wear masks. The employer can’t make sure bus riders maintain safe distance from each other. There’s nothing the employer can do about the bus conditions. So even though your fear may be “reasonable,” it isn’t based on any failure by the employer. Unemployment benefits won’t be paid to someone who refused a job because of safety or health fears not caused by workplace conditions.
For the time being I’m getting unemployment benefits higher than my previous wages. Can I keep unemployment if I turn down a job offer because it doesn’t pay as much as unemployment?
No. You must prove to the agency that your true, actual reason for refusing a job was “reasonable and good faith” concern about health and safety at the job.
In these situations the employer probably will say that your health and safety claims are just a pretext, not real. The employer will argue that the only reason you turned down the job was because unemployment pays more.
You will have to convince the unemployment agency that your health and safety concerns:
- are real;
- are reasonable; and
- are the reason you refused the job.
You will lose if the agency doesn’t believe you. You should bring strong clear evidence to show the truth of what you are saying.
What if I’m offered a job that I’m just not qualified to do? Will I lose my unemployment if I turn it down?
This has nothing to do with coronavirus. The law looks at whether the offered job is “Suitable” for you, given you past work experience, your education, your training, your skills, your previous wage rates, and other factors.
- Suppose it’s the kind of work you’ve done in the past, and it pays the kind of wages you’ve earned in the past. The unemployment agency will count that job as “suitable” for you. You will lose benefits if you turn that job down.
- But suppose it’s not like any job you’ve ever done, and it calls for special skills or training you’ve never had. The unemployment agency will likely count that job as “not suitable” for you, and you should get benefits.
Is workplace safety and coronavirus risk considered in deciding whether a job is “suitable?”
Yes. Absolutely yes. In fact, the very first factor in the list to be considered is “the degree of risk involved to the individual’s health, safety, and morals.” West Virginia Code 21A-6-5.
If you can show that the offered job places you in an unreasonable risk of harm to your health or safety, then the job is not considered “Suitable.” If the employer has not taken reasonable protective steps, then the offered job probably isn’t “Suitable.”
How will the unemployment agency know whether a job is Suitable or Not ?
Mostly because you’re going to have to explain to the agency why the job is NOT suitable. Once an employer reports that you turned down a job, it’s going to be up to you to show the agency why that particular job was not “Suitable” for you.
- If you are in a high risk of severe harm category, you will have to provide evidence to show that.
- If the employer won’t take reasonable steps to protect employees, you will have to provide evidence to show that, and how you know that’s true.
For example, suppose you’ve been offered a place at a telephone call center where you used to work. You know that “before coronavirus” everyone worked close together, in little cubicles. You may have had 2 or 3 or 4 or 5 people all sitting within six feet of you.
Has the employer changed that? Is the employer going to space people out? Will the employer require everyone to wear masks? How often does the company clean the equipment and computers you use? How are things different now than they were “before coronavirus”?
You cannot assume things will be the same as “Before coronavirus.” You need to talk to the employer to find out what protections are being put in place. You need to find out whether the employer is willing to take the steps that will keep you safe. If you don’t know the answers to these things, you probably won’t win your claim.
My company has been paying me and keeping me on the payroll all through the shutdown. Now they want me to come back to work but I don’t think it’s safe. Can I get unemployment if I technically “quit”?
Yes, if you can show (1) your health and safety concerns are “reasonable” and (2) the employer did not take reasonable steps to protect its workers, it doesn’t matter how you got to this point.
We believe there are three different ways this coronavirus health and safety workplace problem might come up:
- You turned down an offered job, based on a reasonable good faith concern for health and safety. In legal terms, the question is whether the claimant “Refused Suitable Work.”
- You refused to perform an existing job based on a reasonable good faith concern for health and safety, and then got fired. In legal terms, the question is whether the claimant was fired for “Misconduct.”
- You quit the job when the business reopened, based on a reasonable good faith concern for health and safety. In legal terms, the question is whether the claimant quit “with good cause involving fault on the part of the employer.”
No matter how the “reasonable good faith concern for health and safety” comes up, the same basic analysis will apply:
- Does the claimant have a reasonable and good faith concern for health and safety?
- Did the employer take reasonable steps to protect the health and safety of employees?
If you’re on the right side of these two questions, you should win. If you aren’t, the employer will win.
Would it help to get a statement from my doctor that I am in a “high risk of severe outcome” group, and explaining why the steps taken by the company (if any) are not adequate?
A doctor’s statement will be very good evidence that your health and safety concerns are “reasonable.” In the letter, the doctor needs to describe your medical condition in some detail, and explain why the steps taken by the employer aren’t enough.
CAUTION: Too many doctors just scribble a sentence note on a pad saying “Ms. Jones should not work at the ABC Company.” That won’t help much. That kind of note doesn’t explain anything about you, the risks that you face, or what protections would be reasonable for you.
I’m still on the payroll. Now they want me to come back to work. My doctor says not to go back because the company hasn’t taken adequate protective steps. If I refuse to go back, is that what’s called a “medical quit”?
There is a different justification for quitting a job, called a “medical quit.” It applies when (1) you have a specific medical problem, AND (2) conditions at your job “aggravate, worsen or will worsen” your health problem. For example, your job running a particular machine may make your carpal tunnel syndrome much worse. If you have to quit a job because the work “aggravates, worsens or will worsen” you medical problem, you will be able to get unemployment benefits.
But be careful. If this is your situation you must meet two ADDITIONAL requirements. You must tell the employer about your health problem within 2 days of quitting; AND you must give the employer a “written certification from a licensed physician” that your work “aggravated, worsened or will worsen” your medical issue. If you don’t do both of those things, the Medical Quit exception will not apply no matter what the underlying facts may be.
We do not think the Medical Quit rule applies to a situation where your doctor says that a return to work would have too much chance of infecting you with coronavirus. Some people will go back to work and not get infected. The doctor cannot say that you “will” get infected, only that there’s too high a “chance” that you’ll be infected. The doctor cannot say that the workplace “aggravates, worsens, or will worsen” an existing health condition.
So don’t call this a Medical Quit. Call it a health and safety problem. Don’t tell the unemployment agency you quit because of a medical condition; tell the agency you quit because the workplace wasn’t safe.
Tell your employer you are quitting because the company did not take reasonable steps to make the workplace safe for you. The job is not “Suitable” for you because the employer hasn’t taken adequate steps to protect you from the new risk of COVID-19 in the workplace. You have a reasonable and good faith concern for your own health and safety. All the things we have discussed in this article should support your decision based upon your doctor’s opinion. In legal terms you are quitting “with good cause involving fault on the part of the employer.”
If you quit for this kind of reason, and your application for unemployment is denied, contact Legal Aid. If you have a winnable case we may be able to represent you to try to get unemployment benefits for you.
What if my doctor says I should not go back to work at any job, no matter what steps the employer has taken?
In this situation you probably will not receive unemployment benefits. That’s because the law requires that claimants must be “available” for full-time work.
If your doctor says there is no work at all you should perform, then you aren’t “available” for work. You will not be approved for benefits.
If your doctor says you shouldn’t take one particular job because it isn’t safe, but there are plenty of other jobs you could do under proper protections, then you are “available” for work.
I’m on unemployment benefits now. If I turn down a job offer because I don’t think it’s safe, I know the company will report that to WorkForce West Virginia. Will I get the chance to give my side of the story before the agency decides whether I should lose my benefits?
This is a really important question. We believe you have a constitutional right to be able to tell your version BEFORE benefits are cut off.
When you first apply for benefits the agency takes your application. Then it contacts the last employer and asks for the company’s version. Only AFTER each side has had the chance to give information does the agency decide whether to pay or deny benefits. That’s fair to both sides.
The same process should apply after weekly benefit payments have started. It’s always possible that situations can change, and the claimant may lose eligibility because of new facts. But the agency must hear BOTH sides before taking any drastic step like cutting off payments.
Would it be okay for the agency to stop benefits immediately, based only on the company’s report, and ask questions later? No, no, no -- we believe that is not acceptable. If the agency cuts of benefits without asking for complete information, and you have to appeal, you could go weeks and weeks before having the chance to present evidence and win your case.
There are a lot of issues the agency must consider, even after an employer report of “Refusal of Work.” The unemployment agency has to look at whether you had a reasonable and good faith belief of harm to health and safety. The law is clear that the agency has to assess “the degree of risk involved to the individual’s health, safety, and morals.” The agency has to assess whether the employer took reasonable steps to protect against the risk to health and safety. The agency cannot fairly assess all those things until and unless it has given both sides the opportunity to give information,
If your payments are cut off and you weren’t even asked for your version, contact Legal Aid as soon as possible. We may be able to help you try to get those benefits back in place.
What’s the short simple “take away” from all of this discussion?
First, understand that West Virginia has very good law to protect the health and safety of employees in the workplace. Some states are telling workers they have only two options: take an unreasonably dangerous job, or lose your benefits if you refuse the unreasonably dangerous job.
Not in West Virginia. For over thirty years West Virginia law has been clear that you won’t be denied unemployment benefits for refusing to do an unreasonably dangerous job. That protection will not change in this coronavirus pandemic.
Second, understand that to get or keep unemployment benefits you must show:
- You have a reasonable and good faith belief that performing the job would jeopardize your health and safety or the health and safety of others; AND
- Your employer has not taken reasonable steps to address your reasonable health and safety concern.