No one likes the unemployment process – some are ashamed to apply and others are caught up in an antiquated system, not designed for the recent influx of applications, waiting weeks and now months for the first signs of benefits they earned. For those who have received unemployment benefits, there still is a restlessness and desire to go back to work. Even if you find yourself temporarily making more money on unemployment than working, unemployment benefits (including the additional funds the unemployed are receiving as a result of COVID-19) are short term, leaving you without an income stream once they end.

Many questions are arising for recently laid-off employees as they navigate this new normal.  Do you have to accept any offer of employment (even if you feel unsafe)?  As businesses re-open with restrictions, how does this effect your paycheck?  How are you going to make your usual tips if the restaurant is at 50% capacity as is the case in Pennsylvania?  How can you make commissions, if the store is encouraging customers to order ahead or online? In order to best situate yourself in this ever changing work environment, it’s important to understand the guidelines around unemployment and what protections are in place surrounding COVID-19.

Background on Unemployment

Pennsylvania’s Unemployment Compensation Law is outlined in a series of statutes (See 43 Pa. Stat. Ann. §§ 751-919), and is designed to be a short-term system providing benefits while a person looks for a new job.  Because of COVID-19’s unprecedented impact, the Pennsylvania legislature passed some emergency additions to the act, which waive certain eligibility rules like the one-week waiting period and the job search requirement.

However, some key eligibility requirements remain in force.  Most applicable here are a series of rules around requiring an employee to accept job offers that are “suitable” unless they have “good cause” to reject them.  The term “suitable” is used pretty broadly, and really only protects against job situations that pose a significant health risk or qualification issue.  Even though a job offer for less money than you were previously making may feel unsuitable, it likely would not qualify as “unsuitable” for unemployment purposes. (See Big Mountain Imaging v. Unemployment Comp. Bd. of Review).  In order to continue receiving unemployment benefits, an offer for suitable employment can only be rejected for good cause.  During COVID-19, the Pennsylvania government has stated that good cause includes rejecting suitable offers because an employer is violating government orders and is opening prematurely, or the employee is at risk of complications from the virus and the employer is unable to reasonably accommodate them.

Functionally speaking, after an employer offers you a job and you reject it, the employer has seven days to file a form with Pennsylvania’s Department of Labor and Industry, stating they offered you suitable employment and you rejected it.  If the employer files the form within that window, you could lose your unemployment benefits unless you can show that the work was either not suitable or your rejection was for good cause.  An important factor to keep in mind is that if you do decide to reject a job offer, it will fall on you to demonstrate the unsuitability of the job or your good cause for rejection – a daunting task given the state of already overextended unemployment offices.

What to Consider If You Receive An Employment Offer

Above all, think of your health.  If you know that you are at risk for complications from the virus, you need to communicate that to any employer who makes you an offer.  Under the system, once an employer knows about your health issue, it will fall on them to show that they are able to accommodate you.  (See Nolan v. Unemployment Comp. Bd. of Review).  To that end, even if you are not an at risk individual, ask the employer how they plan to make the workplace safe upon reopening.  If the response doesn’t reference following state and CDC guidelines, this should raise major red flags and could signal that the job being offered is not “suitable.”

Length of employment is obviously important, and while there is no way to guarantee that a business will survive COVID, if you suspect that an employer is merely offering you a short-term position to satisfy the Paycheck Protection Program (or “PPP”), loan conditions (like stating that you will be paid but do not need to work for eight weeks), may be considered fraud on the part of an employer.  It is important that you ask probing questions to determine how serious this offer is in the long term and to confirm that the offer is for true employment (and not just an end-run around PPP conditions).  But it is also important to know that as a condition of the PPP loan, employers must report the rejection of an offer of employment to the state unemployment office within 30 days of an employee’s rejection of a good faith offer to return at the same pay and hours as before they were laid off or furloughed.  Accordingly, if you turn down an offer of employment made in good faith by your employer, your benefits are at risk.

Compensation is another crucial area where clarification may be needed.  If you work in the service industry, ask the employer how they plan on recouping lost opportunity for gratuities, since capacity will be reduced.

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Employees receiving unemployment who are looking for work are currently stuck between the antiquated laws on the books and the rapidly evolving laws meant to combat the current pandemic.  If you turn down suitable employment and do not have good cause for doing so, your unemployment benefits could be in jeopardy. at risk.  If you are offered employment and are worried that the business may not survive or that you may not make as much with the restrictions in place, remember that unemployment benefits do not last forever (unless Congress acts, extra unemployment funds will stop in July) and if the offer is suitable, you must accept it.  However, this does not mean you have to accept an offer that makes you feel unsafe or that is putting you at risk for catching the virus.  Accordingly, more than ever, it is crucial that you stay informed of all developments – especially any changes to unemployment benefits both on the federal and state level – so that you can make a  wise and informed decision when assessing your employment options.

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