Do Colorado Workers Have To Return Next Week? ‘Huge Conflict’ Looms Over Health And Money

Coronavirus Cherry Cricket Restaurant Layoffs
Hart Van Denburg/CPR News
A view out the window at Denver’s Cherry Cricket restaurant on Monday, March 16, 2020 during the coronavirus outbreak. Most of the restaurant’s staff were furloughed and remaining staff are handling only curb-side and take-out orders.

Gov. Jared Polis will allow the state’s stay-at-home order to lapse after Sunday. Retail stores, hair salons and child care will gradually be allowed to partially reopen, among other businesses.

Bosses are already calling their workers back — and it's setting the stage for chaotic confrontations between workers and their employers.

Jennifer, 58, learned today that her daycare classroom in Douglas County was being disinfected in preparation for a reopening Monday. She’s scared to surround herself with young children because her asthma, Type 1 diabetes and age make her vulnerable to COVID-19. 

After she explained her fears, her employer told her she could return or resign, she told Colorado Matters. So, she’s going back.

“I don't think I have a choice. I mean if I lose my medical benefits, I will go bankrupt in about two months,” she said through tears.

CPR News is omitting Jennifer’s last name because she fears retribution at work. She understands her bosses’ decision, she said.

“I think they've done everything they can from a financial basis," Jennifer said. "They have tried their very best to keep me on, keep me covered (for) medical and pay me."

Fear And Confusion

Workers across Colorado are facing the same paradoxes as Jennifer, driven in part by conflicting laws and policies. Employers also are trying to balance federal requirements, legal risks, the threat of bankruptcy and the health of their employees.

“I think the conflict will be huge, just because nothing is set up to deal with this. Employers are in a Catch-22 and employees are going to be in a Catch-22,” said employment attorney Bryan Kuhn, predicting thousands of court battles and even U.S. Supreme Court cases that will spring from the weeks ahead.

In Arvada, Tiara Campbell’s boss texted her on Tuesday night, telling her she’d have a shift next week at the dog-grooming salon.

“There was no way I could,” she responded.

Campbell, a 39-year-old single parent, is also caring for her 13-year-old son. He has an ADHD diagnosis, and she fears she’ll be breaking truancy laws if she leaves him alone with his schoolwork. Her boss suggested daycare.

“Unfortunately, I don’t have child care that I can afford — and I definitely don’t have any child care that would do schoolwork with the teenager," Campbell said.

As of Friday, she didn’t know whether she’d be fired for staying out of work. Jefferson County announced on Friday that it would extend its stay-at-home order, making it unclear when Campbell's work will reopen.

Are you being asked to return to work? Share your experience with the reporter at [email protected].

Unemployment benefits are at risk.

Workers have a few options if they’re called back to work, but each is fraught with risk.

If they refuse to work, they could face a challenge to their unemployment benefits. Employees and employers are both required to report job refusals to the Colorado Department of Labor and Employment.

“We are then required to look at the individual facts of the circumstances, to make a determination,” said Phil Spesshardt, benefit services branch manager for CDLE.

A worker’s unemployment benefits can be terminated if state officials find that the worker refused a “suitable” job. But that’s a difficult question in normal times — and it’s much more complicated during a pandemic.

For example, employees can keep their benefits if their workplace is found to be significantly riskier due to the outbreak. But it also depends on what the employer has done to reduce the risk, and how risky the job was to begin with.

Bosses and workers are practically flying blind, Kuhn said. Besides the unemployment question, companies may also face enormous legal liability due to conflicting laws.

“They're kind of throwing it to the private sector and saying, ‘Yeah, okay ... Go figure this out, be safe,’” Kuhn said.

CDLE is drafting guidance, but it will be published just before work resumes on Monday, at best. Other agencies’ guidelines are similarly expected over the weekend.

CDLE has a team that’s ready to examine those unemployment challenges, but they’re not sure what to expect — will it be dozens of cases, or thousands?

Still, deputy executive director Cher Roybal Haavind stressed that the agency’s focus is on paying benefits, not taking them away.

“We certainly are not moving into a punitive posture,” she said.

Workers do have a backup option if they lose their unemployment benefits. The Pandemic Unemployment Assistance program offers backup benefits for people who can’t work due to health concerns, child-care needs and other reasons.

That temporary program could cover cases like Jennifer’s and Campbell’s. But it's a chancy option. Workers can only apply for PUA after they have lost or been refused for regular unemployment benefits. To get there, workers must risk their jobs in a confrontation with their employer.

That’s not an acceptable risk for someone like Jennifer, who needs her job's health care plan.

“It's a statistical game, I guess you could say," she said. "Do I risk the chance of getting the coronavirus and probably becoming quite ill, if not die, or declaring bankruptcy and losing all my assets?”

A common question: Can my employer force me back to work?

And it has no clear answer. If an employee refuses to return to work, both they and their employer are required to report that fact to CDLE.

Once that happens, state officials will review a case to determine whether you refused “suitable” work. But that can depend on several factors:

  • Is the work similarly paid and of a similar type to previous work?
  • Is the work significantly riskier due to the outbreak or other reasons?
  • What measures did the employer take to reduce risk?

There’s no single formula, especially during the coronavirus outbreak. If a person does lose regular unemployment benefits, they may still qualify for the Pandemic Unemployment Assistance, the temporary expanded program.

PUA is available for several reasons, including:

  • You have COVID-19 or you’re seeking a diganosis for COVID-19 symptoms
  • A medical professional has advised you that you are vulnerable to COVID-19 and should self-quarantine
  • A member of your household was diagnosed with COVID-19
  • You’re caring for a family member with COVID-19
  • You must care for a child who can’t attend school or child care due to the shutdown
  • You had to quit your job “as a direct result of COVID-19”

But few people have navigated the PUA process, and the state so far has focused mostly on providing the benefit for contract workers. Unemployment benefits are only available for 39 weeks.

Anyone facing a conflict with their employer should document all of their concerns and communicate those concerns to their supervisors, attorney Bryan Kuhn said.

Mixed incentives for both sides

Workers and companies are navigating complicated questions about money, too.

Companies that have received federal loans through the Paycheck Protection Program have an incentive to hire workers back soon. The loans can be forgiven — no repayment needed — if the employer spends at least 75 percent of the money on their payroll within eight weeks.

The state has already heard from several employers ready to spend PPP money, according to Roybal Haavind. But some workers have the opposite incentive: They’re making more money from temporary unemployment benefits.

A bartender on the Front Range told CPR News that his boss recently asked employees to come back.  CPR News is withholding his name, at his request, because he wants to return to the job later and fears reprisal.

The bartender previously earned about $350 a week, including tips, for about 20 hours of work. He’s now collecting about $900 per week through unemployment, thanks to the $600 weekly boost provided by a new federal law.

Now, his boss has secured a PPP loan and called back employees, he said.

The new work would likely pay about half the old hourly wages — about 40 hours at $8.50. Business and tips are down significantly, and the new job could include landscaping and cleaning, the bartender said. He doesn’t want to return, both for financial and health reasons.

“It’s kind of de-incentivizing, and I feel kind of bad,” the bartender said. “It’s kind of crazy. I get it from his point of view, and I don’t expect him to pay out of pocket the difference.”

Now, he worries what will happen next, and he can’t reach the unemployment hotline for an answer. With the substantial changes to his job, he could be allowed to keep his benefit — but there are no firm answers.

He’s “stressed out."

“I feel like I’m being pulled in a couple of different directions.”

Ryan Warner contributed to this article.