Returning to Work - Pisgah Legal Services

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This FAQ points towards help during this difficult time. This is not legal advice. This FAQ does not cover every situation you may face. If you need additional help, contact Pisgah Legal Services at (800) 489-6144 or apply online at www.pisgahlegal.org/free-legal-assistance/

Last updated 9/9/2020

The Department of Commerce Division of Employment Security (DES) has provided information on questions regarding returning to work,

Refusing to return to work when your employer calls you back typically makes you ineligible to receive unemployment benefits. When you return to work, you should stop filing your Weekly Certifications for unemployment.

DES will consider that you have good cause to refuse to return to work, and may continue to be eligible for unemployment benefits, if you refuse due to one of these COVID-19 related reasons:

You have been diagnosed with COVID-19 or are experiencing symptoms of COVID-19 and have been advised by a medical professional to not attend work.
A member of your household has been diagnosed with COVID-19 or you are providing care for a family member or a member of your household who has been diagnosed with COVID-19.
You are at high risk of severe illness from COVID-19. The Centers for Disease Control and Prevention (CDC) defines a high-risk individual as a person 65 years of age or older, or a person of any age, who has serious underlying medical conditions including being immunocompromised, or has chronic lung disease, moderate-to-severe asthma, serious heart conditions, severe obesity, diabetes, chronic kidney disease and undergoing dialysis, or liver disease.
You are the primary caregiver of a child or person in your household who is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency, and the school or facility is required for you to work.
You are unable to reach your place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency or you have been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
In order to comply with any governmental order regarding travel, business operations and mass gatherings, you must refuse a recall to your former employment or an offer of suitable work.
You reasonably believe there is a valid degree of risk to your health and safety due to a significant risk of exposure or infection to COVID-19 at your employer’s place of business due to a failure of the employer to comply with guidelines as set out by the CDC, other governmental authorities or industry groups as may be found in CDC guidance, the Governor’s Executive Orders, or other binding authority; or due to objective reasons that the employer’s facility is not safe for the claimant to return to work.

I have been getting unemployment benefits, but I am returning to work. What should I do?

If you return to work, stop filing your Weekly Certifications to discontinue your benefits. You do not need to report to DES that you’ve gone back to work.

If you continue to receive benefits for weeks after you return to work, you may be required to pay back the benefits if you were overpaid.

What should I do if I’m returning to work, but I’ll be working reduced hours?

Continue to file your Weekly Certifications and report any wages you earn. Remember, you must report wages for the week in which you earned them, not the week in which you are paid.

Any wages you earn may affect your weekly benefit amount.

If you never left work but your hours have been reduced, you should apply for unemployment benefits. DES will determine whether you are eligible for unemployment benefits.

My employer has called me back to work. What happens if I choose not to return?

Generally, an employee is disqualified from receiving further benefits if the employee chooses not to return to work after receiving notice to do so from their employer. If your employer has called you back and you did not return to work, you should report that you have refused an offer to work when filing your Weekly Certification. You will have an opportunity to provide more information about your reason for not returning to work. DES will determine eligibility for unemployment benefits on a case-by-case basis.

You may continue to be eligible for benefits if you do not return to work for good cause. Examples of good cause related to COVID-19 are set out above, such as being diagnosed with COVID-19, caring for someone with COVID-19, or being unable to get to work because of travel restrictions due to COVID-19.

I feel unsafe returning to work because I am 65 or older and/or have a medical condition that makes me at higher risk for severe illness if I contract COVID-19. Can I refuse to return to work?

If you are 65 or older and/or you have a medical condition that puts you at a high risk for severe illness if you are infected with COVID-19, and your employer is not able to offer you a safe workplace or your job does not allow for a reasonable accommodation such as teleworking, you may have good cause for not returning to work and be eligible to receive benefits.

A note from a Doctor of Medicine (MD) or Osteopathy (DO) who is authorized to practice medicine by the state of North Carolina will be considered as proof of a high-risk medical condition.

I am not 65 or older or a high-risk individual for severe illness if I contract COVID-19. However, I have reasonable concerns that my work environment is unsafe. Can I choose not to return to work and remain eligible for benefits?

You should talk to your employer. If your employer has taken steps to create a safer workplace by following safety standards as recommended by the Centers for Disease Control (CDC) or other governmental authorities or industry groups, you may be found ineligible for benefits if you choose not to return to work.

Eligibility for unemployment benefits is determined on a case-by-case basis. Typically, an employee who quits without good cause is not eligible for benefits. If your employer is not following recommended safety standards, then your refusal to return to work may make you eligible for benefits, if there is a valid risk to your health and safety due to a significant risk of COVID-19 exposure or infection at the place of business. You will need to disclose your job offer refusal to DES, and your employer may report it to DES as well. Ultimately DES (or a court) will decide if you had good cause to quit under these circumstances, but it will be your burden to prove, and your employer will be able to present its side. You may lose benefits while this dispute is pending and you may be required to repay benefits paid if you are unsuccessful.

Here are some helpful links to learn more about what you can do if you feel unsafe at work:

I can make more money collecting unemployment benefits than I can returning to work. Can I refuse an offer to return to work because I will earn less and remain eligible for benefits?

No. Choosing not to return to work solely on the basis that you will earn less than you can collect in unemployment benefits is not considered good cause when your employer has offered you your former employment back or other suitable employment. If you refuse to return to work solely on this basis you will not be eligible to receive benefits. If you refuse to return to work for this reason and you continue to receive benefits, you may be required to repay the benefits you incorrectly received and may face other penalties.

What if I disagree with the decision that is made about my benefits?

You and your employer will be notified about the determination of your eligibility. The employee and employer both have the right to appeal the determination if they disagree with the decision. You will have 30 days to file an appeal of the decision.

My employer has changed my job duties, assignment, or work location. Can I refuse to return to work due to the changes and get benefits?

An employee may be eligible to receive unemployment benefits if there is a substantial change in the contract of hire and they quit their position.

For example, if your pay is reduced by 25 to 30%, your assigned shift is permanently changed without your agreement, you were moved to a new facility with a substantially longer commute, or the employer made other drastic modifications to the type of work for which you were hired, it may constitute a substantial change in the contract of hire.

However, minor changes, for example being moved to a new line, requiring one or two extra hours of work a day, or changing your work location in the same facility, etc., likely would not constitute a change in the contract of hire, and you would not be eligible for unemployment benefits.

The issue of what is substantial is very fact specific and is determined on a case-by-case basis.