The push to reopen the economy is accelerating. After seven weeks of social distancing and working from home, many Americans are heading back to work — and many employees and consumers are anxious about their safety.
Some states are pushing to reopen. Some companies are calling employees back to work after receiving loans to cover losses related to the coronavirus pandemic.
Under the Paycheck Protection Program (PPP), which was enacted in the Cares Act and given additional funding last week, those business loans can be forgiven entirely if companies do not lay off any employees or rehire employees that they have already laid off. At least 75% of the loan has to be spent on payroll for the loan to be forgiven.
Here are some common concerns as Americans head back to work.
Please note none of this is legal advice, and your outcome may vary depending on your situation. You may need to consult legal counsel.
Q: Do I have to return to work if I am pregnant or have a health condition that places me at higher risk if I am exposed to the coronavirus?
A: Try to obtain documentation from a health-care provider that you are especially vulnerable and at high risk, and that your health-care provider recommends self-quarantine. Once you have done that, your options include:
- Asking your employer to grant you reasonable accommodations (such as alternative duties or temporary job-protected leave, for example) under the Americans With Disabilities Act.
- Asking to be granted paid sick or emergency Family and Medical Leave under the Families First Coronavirus Response Act.
Q: Can my employer make me return to work if I don’t have child care?
A: Under the Families First Coronavirus Response Act, which was signed into law in March, employers have to provide employees with paid sick leave or expanded family and medical leave if they can’t work because they have symptoms of COVID-19, are quarantined or have to care for a child when schools and day-care centers are closed.
Families First requires employers of 500 or fewer to provide partially paid emergency Family and Medical Leave to employees who have children at home needing care.
This option is available only to workers who cannot perform any part of their job at home.
If Families First leave is not available — for example, if your employer is so small the Labor Department exempts it — you can try requesting job-protected unpaid leave.
Q: I am not convinced my workplace is safe, and I don’t want to risk exposing myself or people at home. What are my options?
A: If you don’t fall under the Americans With Disabilities Act of Families First options above, your only other option may be to hope to be laid off or furloughed without pay so you can collect unemployment. But an employer who has obtained a PPP loan may not want to take this route.
If you’re employed and furloughed, your employer will need to pay you with PPP funds to have its loan forgiven. If you have been laid off, your employer will have to replace you with another hire to keep its head count consistent so it can have the loan forgiven.
If you believe your employer is operating unsafely (refusing to adopt preventive measures or provide sanitizer or PPE, for example), you can file a complaint with your state’s labor agency or the Occupational Safety and Health Administration, but don’t expect a swift resolution.
Q: Do I have to return to work if our state is under stay-at-home orders and our business is nonessential?
A: Your state will have its own rules on how nonessential businesses can operate during the pandemic. These may include limiting the number of workers allowed in the workplace, shuttering its doors to the public or providing workers with protective equipment. If you think your employer is violating the state’s mandates, you can file a complaint with the appropriate state agency.
Q: How can I find out if my employer has applied for or received a PPP loan?
A: In most cases, employers will notify their workers if they receive PPP funds because they will need to call them back to work so they can have the loan forgiven. Also, the employer will probably want to adjust its filings with the state’s unemployment office if it starts paying wages to any of its furloughed employees so those workers don’t receive additional unemployment benefits they’re not entitled to.
Publicly traded companies that apply for PPP loans have to file a Form 8-K report with the Securities and Exchange Commission. That information is searchable on the SEC website.
In rare cases, employees can demand information from their employers under disclosure laws. This is a contentious option and should be considered only as a last resort; consult a lawyer before taking this step.
Q: Do I have to return to work if I am receiving more in unemployment benefits than I would be receiving in wages?
A: If you qualify for state unemployment benefits because of COVID-19, you probably also qualify for an additional $600 per week under the Cares Act. If that’s more money than you receive in regular wages, staying on unemployment may seem like a no-brainer. However, there are risks:
- If you are invited back to work and turn it down, you may no longer qualify for unemployment benefits under your state’s rules.
- If your employer decides to lay you off and hire someone else with its PPP funds, you may no longer qualify for unemployment benefits.
- Even if you stay on unemployment, and your employer simply hires someone else without challenging your rights to unemployment benefits, the Cares Act’s $600-per-week benefits boost will end by July 31, 2020.
After that, if you can’t get by on state unemployment benefits, you’ll need to find another job — and so will millions of other people.
Q: My employer got a PPP loan and is asking us to do work other than what we usually do — cleaning the office, for example — until the business reopens. Do I have to do this?
A: Employers don’t have to require employees to do work when it’s paying them with PPP funds — but if there’s work to be done, the employer can require it, even if it’s not the same work you usually perform. If the work exposes you to health risks, you may be able to seek a reasonable accommodation under Americans with Disabilities or file a complaint with the Occupational Safety and Health Administration. But if you refuse to do the work, your employer may be able to fire you for cause, which could jeopardize your eligibility for unemployment benefits.
Q: My employer is giving hourly workers only six hours a day. Can they do this?
A: Under the Cares Act, employers have to spend at least 75% of the PPP loan on payroll costs to have the loan forgiven. Employees must receive 75% of the average weekly pay they received for the first quarter of 2020. If they’re working six hours instead of eight, that’s 75%, which is enough for the employer’s PPP loan to be forgiven.
If the pay you’re receiving is less than 75%, you may qualify for partial benefits with your state’s unemployment agency.
Q: Do employers have to rehire the same people to have the PPP loan forgiven, or can they hire someone new?
A: The goal of the PPP is to allow employers to retain their workforce and minimize the costs of hiring and training new talent, while reducing the burden on state unemployment systems. But companies do not have to hire back the same workers as long as their overall employment numbers remain the same.
Q: My employer has two businesses but got a PPP loan for just one of them, which is not the one I work for, so I am working unpaid. Can my boss do this?
A: Employers applying for PPP loans must disclose any affiliated companies. It all depends on the details of how your employer’s businesses are structured, but generally, if the employer applied for a PPP loan for one business, using information from the other, the PPP loan funds should be used to pay employees of both companies.
Regardless, if you are doing any work unpaid, that is wage theft. You should report it to your state’s labor agency and the federal Labor Department’s Wage and Hour Division.
Q: Where can I complain if I believe my employer is abusing its PPP loan?
A: You can report suspected PPP fraud anonymously to the Small Business Administration’s Office of Inspector General at 1-800-767-0385 or at sba.gov. Just know that, as with most employment-related public agencies right now, the SBA is slammed and underfunded, so any complaints may take a long time to be resolved.
Many thanks to Amy Epstein Gluck and Lenore Horton, partners at FisherBroyles LLP; Declan Leonard, business law partner at Berenzweig Leonard; and Tom Spiggle, principal at Spiggle Law.
- U.S. Department of Labor Coronavirus page
- Equal Employment Opportunity Commission Q&A on ADA and other anti-discrimination laws regarding coronavirus
- Your state may have even more relevant information about unemployment rules. Workplace Fairness provides a helpful plain-English list of links to various states’ employment agencies.