Best Ohio Coronavirus Employment Law Attorney Answer: Should I quit my job if my employer is not taking my safety seriously during Covid-19? How hard is it to get unemployment due to Coronavirus terminations, layoffs and furloughs? Is there anything I can do to make my chances of winning unemployment benefits better during the Coronavirus pandemic?
There is so much information all the time about Covid-19 and what you should or should not do—as a family, as a person, as a parent, as a neighbor, as an employee. It seems like everywhere you turn there is conflicting advice. Our employment law lawyers think the biggest concern for may for many right now is how to keep their family safe, but a close second is, how am I going to feed my family?
In a world where there is not much clarity, and everything seems to be operating in a shade of gray, our employment law attorneys will try to lay out some basic questions everyone is asking as clearly as possible.
Our regular readers know that The Spitz Law Firm has been tracking the impact of Covid-19, and its impact on employment law for quite some time now. (see Coronavirus Law: Can I Be Fired For Refusing To Work?; More Coronavirus (Covid-19) Tips For Employees, Coronavirus: What Will Happen At Work?; Our Handling Of The Coronavirus (Covid-19) Outbreak; Employment Law: Legislative COVID-19 Response; Coronavirus (Covid-19): Our Firm is Thinking of You and Your Families). If you think you have been wrongfully fired, call our attorneys now for a free wrongful termination consultation.
Are employees who quit because of unsafe or unlawful work environments eligible for unemployment benefits?
Yes. Generally, unemployment is a resource for those who are temporarily out of work through no fault of their own. If your employer makes it impossible to continue working safely during the pandemic, it’s not your fault. There are three main criteria used to determine who is eligible for unemployment. These criteria do not change in the face of the Coronavirus pandemic. The three criteria are: (1) the employee must be out of work through no fault of their own; (2) the employee must meet the minimum earnings (at least $269 per week) or job tenure requirements; (3) third, the employee must be able, available, and actively seeking work.
The only hang up is, if you quit it has to be for a really good reason. According to the Ohio Unemployment Worker’s Guide, “if you quit your job when the option of remaining employed existed, you will be considered to have caused your own unemployment. To establish eligibility for benefits when you voluntarily quit, you must show that you had ‘just cause’ for leaving the work.” When it comes to COVID-19 and “just cause” to quit a job, it probably comes down to safety concerns and how your employer is protecting your safety. One of the ways you can establish “just cause” for your voluntary resignation are proving that your employer failed to provide proper safety measures required by law.
However, it is important to note that you cannot quit your job because your boss is not following COVID-19 safety protocol. The legal standard in Ohio is whether quitting and the action taken was one that an ordinary prudent person under similar circumstances would make. Basically, this means you cannot just quit. You have to give your boss the chance to correct their mistakes first. If you bring the safety concern to your boss’s attention, and nothing changes, then you can probably quit and file for unemployment.
What can I do to increase my chances to win unemployment benefits?
Create. A. Paper. Trail! Our employment lawyers cannot stress this enough. Paper trails are what can make or break your unemployment claim (and other types of employment discrimination, wrongful termination, and retaliation claims). Be as clear as possible, ask a family member or trusted friend to proofread your request before you send it to your boss. Try to include as much detail as possible as to why the particular condition is not safe, and how it violates one of the COVID-19 mandates.
It does not matter whether you tell your boss, manager or supervisor of the COVID-19 safety violation through text, email, or handwritten note, just make sure there is a copy that you keep – even if it is a picture or a screen shot. Also, it always helps if there is a date on the letter. Timelines, and verifiable dates are so so so important in the legal community and in unemployment claims. You can add a layer of protection if you keep copies of all of the safety complaints you turn in to your boss.
Another tip— give your boss some time to correct the mistake. Think, what would a reasonably prudent person do in the situation? It is hard to remain calm when you think your safety is at risk but err on the side of giving your boss another chance to “right the wrong.” If you do that (and document it) it will only help your chances for successfully filing for unemployment. Of course, you do not have to put yourself at risk while you wait.
Can an employee successfully argue they had “just cause” to quit a job if they feel their workplace is unsafe and want to protect themselves?
Yes. According to the unemployment handbook, if the sole reason for an employee’s resignation was because they refused to work in an environment that put their safety at risk, it is likely they will win unemployment benefits. Again, the employee has to give the employer notice that there is a safety concern before they quit.
There are many examples of this. All attorneys love using hypotheticals—stay with me here. Ann works at a factory. Normally, there are 50 other workers on her shift. They typically stand three feet apart on the assembly line. During COVID-19, Ann’s boss gives her and her co-workers gloves, masks, and installs hand sanitizer stations around the work floor. However, Ann still has to stand three feet away from all of her coworkers. It is likely that Ann feels unsafe, and her boss is violating the six feet standing order. What should Ann do?
Ann, feeling anxious, and worried could rush to her boss and tell him that she feels unsafe and quit that day. That’s a bad move. The reasonable and prudent person would probably tell her boss in an email that she believes the company is violating the State Mandate, and employees should not be forced to stand that close to each other at work. Then Ann would give her Company a few days to correct the situation. If a few days pass and no one responded to her email, and everyone works three feet from each other, Ann can quit and probably receive unemployment.
What if the employee has a health condition that makes him/her more susceptible to the Coronavirus/COVID-19, or is an older adult?
No, you will not get unemployment for this. Or at least, Ohio has never recognized that as a basis to award unemployment benefits before. But, that does not mean you are out of options. If you have an underlying health condition that puts you at risk, you should ask your boss for a reasonable accommodation to mitigate the risk or for leave under the Family First Coronavirus Response Act (“FFCRA”), which amended the Family and Medical Leave Act (“FMLA”). (See Can I Sue For FMLA Interference Before I’m Eligible?; Law: What Is The Family First Coronavirus Response Act?).
Also, the unemployment office clarified that if an asymptomatic employee imposes a self-quarantine because of the coronavirus, they will not be eligible for unemployment benefits. If the employee chooses to self-quarantine, then they are voluntarily losing work, which defeats the whole purpose of unemployment.
Can an employee quit to protect vulnerable family or household members and get paid unemployment?
No. The employee will not get unemployment benefits if you take time off to care for a sick relative or loved one.
But if a family member is infected. The employee should use the FFCRA/FMLA leave, if they are still at work. See (FMLA & Coronavirus: Who Can I Miss Work To Care For?).
Does the pandemic make Ohio Unemployment less likely to approve claims?
No. Currently, there are no restrictions on unemployment benefits because of COVID-19. In fact, under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) there is more unemployment being sent to state agencies to assist with the rise in number of claims.
That being said, establishing a paper trail is very important. With so many people out of work because of COVID-19, the state is going to fully investigate all claims to the fullest. Presenting enough evidence to unemployment to establish that you had to quit because of “just cause” will make the difference.
Are unemployment rules different during the pandemic?
No. The pandemic has not changed the rules for determining whose unemployment claims are approved and whose are denied. If you were terminated without just cause, or quit for just cause, then you are entitled to unemployment.
The only slight change for unemployment is that during the pandemic, out of work employees are not required to actively search for work each week. However, they still have to be available for work.
What about federal emergency assistance?
If you already exhausted unemployment benefits and you were laid off again due to COVID-19, you could qualify for an additional 13 weeks of Pandemic Emergency Unemployment Compensation benefits under the CARES Act. The benefit amount will be similar to traditional unemployment benefits, plus an additional $600.
Also, the new Federal Pandemic Unemployment Assistance program has expanded unemployment benefits to employees how are not typically covered. For example, 1099 independent contractors and self-employed can now get up to 39 weeks of benefits. This is a new program, Ohio hasn’t completely implemented it, but according the Department of Job and Family Services, once it is up and running, retroactive benefits will be provided.
All in all, if you’re still reading this and you still have a job to report to everyday, try to keep your job. These are uncertain times, and there are so many people in the United States who lost their jobs because of COVID-19. However, if your boss is making it impossible to remain safe at work, or not following COVID-19 protocols, take a deep breath, try to remain calm and then call us. Every life is precious, and if you’re still going to work, you must be essential. Bottom line, our everyday life could not continue without the work you do. Our attorneys would love to help you navigate these rough waters.
At The Spitz Law Firm, our employment lawyers are standing by to take on your Coronavirus related employment claims, including if you are searching “I need a lawyer because I have been wrongfully fired or terminated;” “I have been discriminated against or harassed based on my disability or diagnosis”; or “I was fired for asking about Family Medical Leave Act (FMLA) during the COVID-19 pandemic.” In these uncertain times, if even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our office at 866-797-6040 to get help now. The Spitz Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.