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As business in Iowa gradually begins to reopen, employers are recalling or are preparing to recall employees who were laid off or furloughed due to the COVID-19 pandemic. However, returning to work often poses a dilemma for many employees and how to balance risks to their health and their income.
Remember, the federal Occupational Safety and Health Administration's general-duty clause protects employees from a dangerous workplace with recognized hazards causing or likely to cause death or serious physical harm.
This is a reasonable person standard, which means that an employee can only refuse to go to work if another similarly situated, reasonable person likewise would be concerned.
OSHA also affirmatively recommends employers use controls to prevent exposure, including physical barriers to control the spread of the virus, social distancing, an appropriate personal protective equipment, hygiene and cleaning supplies.
Employees that band together to protest working conditions also are protected from retaliation or termination. However, that standard also requires whether a reasonable person would have similarly believed the working conditions were dangerous.
Finally, business groups are lobbying Congress to pass laws that would shield companies from coronavirus-related lawsuits.
Other organizations are proposing legislation that would force employers to do more to protect employees. Everyone expects imminent litigation over coronavirus issues in the workplace once things have calmed down.
In Iowa, employers also are concerned that employees will be reluctant to return to work. The immediate concern many employers are asking is, Can these employees voluntarily decline to return to work and still continue to collect unemployment benefits?
On April 27, Iowa Workforce Development issued guidance clarifying that employees laid off or furloughed due to the pandemic who refuse to return to work when recalled by their employer will be deemed to have voluntarily quit their employment, losing their state and federal unemployment benefits.
However, benefits will not be lost where the employee fails to return to work due to one of the following circumstances:
' The employee has tested positive for COVID-19 and is experiencing symptoms
' The employee has recovered from COVID-19 but cannot perform essential job duties due to medical complications caused by the disease
' A member of the employee's household has been diagnosed with COVID-19
' The employee is providing care for a member of his or her household who was diagnosed with COVID-19
' The employee does not have child care due to COVID-19 reasons
' The employee does not have transportation to the workplace because of COVID-19.
These six exceptions expand benefit protection only to situations in which the employee's inability to return to work is caused by COVID-19.
Iowa Workforce Development regulations generally provide that quitting due to a non-work-related illness, family responsibilities, a lack of child care or a lack of transportation will disqualify the employee from eligibility for unemployment benefits.
Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids.