Tony Dejak/AP Photo
Construction workers on the job during the pandemic, May 7, 2020, in Cleveland. Ohio is among the states that have made it easier for employers to report employees who do not return to work.
As some states reopen from lockdowns amid still-increasing rates of coronavirus infection, workers may fear returning to work if employers can’t or won’t create safe workplaces. But a handful of states have created new websites for employers to report these employees for unemployment fraud.
As other outlets have reported, Ohio has set up a web page where employers can report “employees who quit or refuse work when it is available due to COVID-19,” thus making their employees ineligible for state unemployment. The link includes “covid fraud” in its web address. Iowa has set up a similar form for employers to “report unemployed claimants in Iowa who have refused legitimate job offers.”
Michele Evermore, senior policy analyst at the National Employment Law Project, says that this isn’t just a “pandemic-related thing” but that states have been aggressively looking to prosecute people for overpayment of unemployment insurance since before the current administration. The websites, however, indicate a new spotlight on the issue by states. Evermore added that states like Oklahoma and Texas are publicly encouraging employers to report employees who refuse to work. In Texas’s case, advocates pressured the state to revise its restrictive return-to-work policies. South Carolina has a step-by-step guide with screenshots to instruct employers on how to submit a Refusal to Work form.
“[This is a] bright flashing light of ‘fraud, fraud, fraud’ that for me is just like another example of the system’s overemphasis on unemployment fraud, rather than making sure we pay people who are out of work,” said Andrew Stettner, a senior fellow at the Century Foundation. He added that one reason states have been so slow in releasing unemployment benefits is that they’re “gun-shy” of overpaying unemployment benefits.
Since before the Trump administration, the federal government has put pressure on states to enforce unemployment fraud, with mechanisms already in place before the coronavirus pandemic to do so. “The driving activity of the U.S. Department of Labor for the last six to seven years has been unemployment fraud,” Stettner said.
If an employer lays off an employee, every week that employer receives a form to fill out that the employee is still not working for them. Most workers who are offered a job after being laid off are offered that job by the same employer, making this form an effective enforcement system, explained Stettner. “There’s lots of methods and procedures that are there to root out fraud without having to do all this snitching.” By law, workers must accept “suitable” work that’s offered to them.
But during a pandemic, these new state websites put public pressure on employers to report employees who refuse a job. “Then, it’s incumbent on the individual to prove that they’re refusing for a good reason,” Evermore said.
Stettner explained that “prevailing working conditions” that include health and safety on the job offer one way a worker can object to workplace conditions, claiming that work in a hazardous workplace is not suitable. “Let’s say there are five groceries in town and four provide masks and gloves and the fifth one doesn’t and you can say you refuse to go back because they don’t have safety equipment,” he explained.
This isn’t always enforceable. As Evermore explained, the Occupational Safety and Health Administration (OSHA), the federal agency that conducts compliance on these issues, “is incredibly understaffed right now.” OSHA has not created a federal workplace safety standard for COVID-19, and Congress has not required it, though the issue tops the House Democratic agenda for the next pandemic response legislation.
But the real question, Evermore maintains, is “Should we be reopening the economy when there are these massive questions still?”
Ohio, which began reopening May 4, has issued safety guidelines for workplaces to protect workers. Bret Crow, a spokesperson for the Ohio Department of Job and Family Services, said the agency had not yet received any refusal-to-work complaints, as the state has just begun its reopening.
“Returning to work during the pandemic is a delicate balance of gradually re-opening the economy while providing safe working environments,” Crow wrote in an email. “ODJFS is required by law to ensure that unemployment benefits are issued in accordance with established eligibility requirements. We first encourage employers to engage in dialogue with an employee who expresses reluctance to return to work about the measures that employers are taking to help employees feel safe.” Ohio workers who are concerned about workplace safety can report those issues to their local health departments, and the state has issued employee-focused guidelines online as well.
OSHA has not created a federal workplace safety standard for COVID-19, and Congress has not required it, though the issue tops the House Democratic agenda.
But other states, such as Nebraska, have no state guidelines pertaining to COVID-19, and are instead following CDC guidelines but not necessarily with effective enforcement mechanisms, endangering workers and making them fearful of coming to work. A spokesperson for the Nebraska Department of Labor, Grace Johnson, told the Prospect that the department has had “about a dozen employers reach out to us so far” and that the department assesses each case to see if benefit eligibility is impacted.
Iowa Workforce Development, the state agency that provides employment services for individuals, said that employees who refused to return to work out of fear of COVID-19 would be considered “voluntary,” which would make them ineligible for state unemployment benefits. Exceptions include employees diagnosed with COVID-19. The state agency did not respond to a request for comment.
Unlike Iowa and Ohio, Nebraska skips the form and has an email account instead for employers to report “suspected fraud of this nature,” reported the Omaha World-Herald’s Martha Stoddard. The Nebraska Department of Labor announced that not going back to work because of COVID-19 fears would be considered fraud.
Private companies have also taken up the battle against their employees. Carvana, an online care retailer, told its employees in an April 27 memo that if workers are not comfortable coming back to work amidst the pandemic, Carvana “will consider you to have abandoned or resigned from your position,” reported HuffPost’s Dave Jamieson.
If the company chooses to report these employees to state unemployment agencies, these workers could become ineligible for benefits. It’s not just that states are motivated to enforce the law; state unemployment systems are stressed and states must borrow from the federal government if those funds run dry, something states may want to avoid.
In addition, employers pay an unemployment tax, and that tax may go up if more people are laid off. With the latest jobs report, U.S. unemployment rose to close to 33 million since the pandemic began. Given that so many people are unemployed now, it’s likely that the taxes will go up anyway.
In a memo for employers, the state of Oklahoma stated that it “passed a law that will stop charges to contributing employers only, for claims that are directly related to COVID-19 until the end of 2020. However, employers will most likely see a rate increase in the annual rate calculations for 2021 as a result of COVID-19.”
If a worker gets sick, the CARES Act does have provisions that enable that worker to collect pandemic unemployment, but as Evermore put it, “it shouldn’t take them getting sick.” The CARES Act also expanded who can claim unemployment benefits to include those who are self-employed or are seeking part-time employment or who might otherwise not qualify for unemployment compensation.
But, ultimately, workers are now facing a choice—one that’s augmented by state websites that make it easier for employers to report their refusal to come to work if they fear contracting COVID-19. According to a May 5 Washington Post-University of Maryland poll, most people oppose reopening businesses, with two-thirds of respondents believing retail shops should remain closed and nearly three-fourths believing restaurants should remain closed to dine-in.
“You know who’s going to end up back to work are people in service industries, people in restaurants,” Evermore continued. “These are not well-off people, they’re also disproportionately black and brown workers.”
