Unemployment Benefits May Be Available – and Retroactive – to Employees Who Refuse Unsafe Work

March 2, 2021

On February 25, 2021, the U.S. Department of Labor (DOL) issued guidance that expands eligibility for the federal Pandemic Unemployment Assistance (PUA) Program.

Congress created PUA in March 2020 to temporarily expand unemployment insurance eligibility to individuals not eligible for regular unemployment compensation or extended benefits, including those who have exhausted all rights to such benefits. Individuals covered under PUA include (1) the self-employed; (2) individuals lacking sufficient work history; (3) those who otherwise do not qualify for regular unemployment compensation or extended benefits; and (4) those who are unemployed, partially unemployed, or unable or unavailable to work due to a specific COVID-19-related reason. (You can review the COVID-19-related reasons in the CARES Act at Section 2102(a)(3)(A)(ii)(I)(aa)-(jj) here and an additional reason that the DOL added at Section C(1)(kk) of Attachment I to UIPL No. 16-20, Change 4 here).

The DOL has now expanded PUA eligibility to include three additional COVID-19-related reasons:

An individual refuses to return to work that is unsafe or to accept an offer of new work that is unsafe – i.e., not in compliance with local, state, or national health and safety standards directly related to COVID-19, including, but not limited to, those related to facial mask wearing, physical distancing measures, or the provision of personal protective equipment consistent with public health guidelines.
An individual provides services to an educational institution or educational service agency and the individual is unemployed or partially unemployed because of volatility in their work schedule that is directly caused by the COVID-19 public health emergency, including, but not limited to, changes in schedules and partial closures.
An individual is an employee and their hours have been reduced or the individual was laid off as a direct result of the COVID-19 public health emergency.

These additional eligibility provisions apply retroactively to the beginning of the PUA program, though individuals who did not file an initial PUA claim on or before December 27, 2020 are limited to weeks of unemployment beginning on or after December 6, 2020.