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Unemployment Insurance

 

Social workers may be eligible for unemployment insurance benefits under the Ohio Unemployment Compensation Law, Ohio Revised Code (“RC”) Chapter 4141.

Generally, in order to be eligible, a social worker:

 

1) must be totally or partially unemployed (more information

 

2) must have worked enough weeks in Ohio during their “base period,” (more information)

 

3) must be involuntarily unemployed through no fault of their own. (more information)

 

Other Information:

Deductions from Unemployment Compensation

Initial Week Waiting Period Waived

Enhanced Federal Stimulus and Ohio Unemployment Benefits

Furlough and Layoff: As a general rule, the terms “furlough” and “layoff” are synonymous in labor law unless the parties give one or the other term a special meaning. For purposes of unemployment compensation law, it makes no difference what the employer calls it, if the employer gives the reason for separation or a reduction in hours is a “lack of work.”

 



Total and Partial Unemployment Defined 

Under these eligibility rules, total unemployment means that the social worker is not performing any work for the employer and correspondingly has no earnings or income for the week. Partial unemployment means that the social worker’s work week or hours were reduced, and their earnings are less than the maximum weekly unemployment benefit established by Ohio or federal law. 


Past Qualifying Work During the Applicable Base Period 

The base period work requirement means that the social worker had to be working for any employer at least 20 weeks during her regular “base period” or “alternate base period” and earning on average at least $269.00 per week before taxes or other deductions from any employer(s) that pays unemployment insurance

 

The regular base period is the first four quarters of the five quarters preceding the claim for unemployment, and the alternate base period is the most recent four quarters of unemployment prior to the claim. So, for instance, if a social worker files a claim for benefits in March of 2020, the regular base period is October 2018 through September 2019. The social worker must gross on average $269 during the weeks they worked during that base period. 

 

But if the social worker does not have enough earnings from contributing employer(s) during the regular base period, the alternate base period may be used, i.e., the most recent four quarters. So, under the alternate base period method, if the social worker files for benefits in March of 2020, they must meet the above minimum earnings requirement for 20 weeks during the period January 2019 through December 2019. The attached document illustrates the base period and alternate base period for filing benefits later in calendar year 2020. 


Involuntary Loss of Work 

The social worker must be unemployed through no fault of her own; namely, she was not discharged for cause and did not voluntarily quit. Under RC § 4141.29, an individual is entitled to benefits if the individual is separated from employment, either partially or totally, because the employer has a lack of work for that individual. Thus, if the social worker is laid off due to lack of work, they are entitled to unemployment.

 

Normally, an individual is not entitled to benefits unless the individual is able to work, available for suitable work, and is actively seeking suitable work, either in the locality where the base period wages were earned, or in any locality where suitable work is normally performed. RC § 4141.29(A)(4)(a). (See additional note, 1)

 

However, in Ohio Executive Order 2020-03D (March 16, 2020)(“Executive Order”), Governor DeWine ordered special unemployment rules for the coronavirus pandemic. Specifically, he ordered that:

 

1. Unemployed workers will include individuals requested by a medical professional, local health authority, or employer to be isolated or quarantined as a consequence of COVID-19 even if not actually diagnosed with COVID-19; and
2. Individuals totally or partially unemployed, or who are participating in the SharedWork Ohio Program will not be required to serve a waiting period before receiving unemployment insurance or SharedWork benefits; and
3. Any benefit paid on these unemployment claims shall not be charged to the account of the employer who otherwise would have been charged but instead shall be charged to the mutualized account, except reimbursing employers; and

4. Waiver of work search requirements shall include those individuals requested by a medical professional, local health authority or employer to be isolated or quarantined as a consequence of COVID-19 even if not actually diagnosed with COVID-19; and

5. Penalties for late reporting and payments will be waived for employers affected by COVID-19.

 

The above orders apply only to those workers that do not have access to leave benefits from their employer(s).

 

Despite the expansion of benefits, the order only applied “… to those workers that do not have access to leave benefits from their employer(s). …” This restriction is not prevalent in existing Ohio unemployment law. That is to say, under prior law one need not exhaust vacation, for instance, to be eligible for unemployment. Rather, any such income received was simply a deduction from unemployment. In other words, there was no obligation to take it. The Executive Order would change this.

 

However, in H.B. 197, which was signed by the Governor on March 27th, the Ohio General Assembly enacted emergency legislation to codify the Executive Order, but it did not enact this “access to leave” provision. The legislation provides in pertinent part: 

 

SECTION 19.
(B) During the period of the emergency declared by Executive Order 2020-01D, issued on March 9, 2020, but not beyond December 1, 2020, if the period of emergency continues beyond that date, all of the following apply:

 

(1) the requirement that an individual serve a waiting period under division (B) of section 4141.29 of the Revised Code before receiving benefits does not apply to a benefit year that begins after the effective date of this section.

 

(2) The Director of Job and Family Services may waive the requirement that an individual be actively seeking suitable work under division (A)(4)(a) of section 4141.29 of the Revised Code for any claim for benefits filed during the duration of this section.

 

(3) Notwithstanding division (D)(2) of section 4141.29 of the Revised Code, an individual shall not be disqualified from being paid benefits if the individual is unemployed or is unable to return to work because of an order, including an isolation or quarantine order, issued by any of the following:

 

(a) The individual's employer;
(b) The Governor;
(c) The board of health of a city health district pursuant to section 3709.20 of the Revised Code;
(d) The board of health of a general health district pursuant to section 3709.21 of the Revised Code;
(e) A health commissioner pursuant to section 3707.34 of the Revised Code;
(f) The Director of Health pursuant to section 3701.13 of the Revised Code. …

 

This “access to leave” provision is important because it is not contained in existing law nor in the CARES Act, which merely denies unemployment benefits if paid time is received versus merely available to the employee. (See additional note, 2) Since H.B. 197 does not contain the “access to leave” provision, we conclude that it supersedes the Executive Order in this respect. Thus, if a social worker declines to use their PTO as offered by the employer, this will not defeat her claim to Ohio unemployment for isolation or quarantine time.

 

At present, the Ohio Department of Job and Family Services (ODJFS) merely asks on its weekly reporting form whether the claimant has received income, not whether she has “access to leave,” paid or otherwise. Unless the employer were to contest the unemployment claim and take position that the refusal to use paid leave time defeats the claim for benefits, at present the issue will not even come up. Moreover, by all these claims are being charged to the state’s mutual account and not against the employers, so employers have little incentive to contest them, although there is no guarantee that they will not do so. Some employers may wish to have social workers take paid leave so that they would be ineligible for Ohio unemployment and the additional $600 per week federal payments on top of existing Ohio unemployment benefits. If a social worker calls the employer with symptoms and is quarantined as a result, the social worker may in fact make more money from unemployment than actual work when federal and state benefit amounts are combined for the same period of unemployment.

 

If social workers have another medical condition that makes work too risky because of potential exposure to the coronavirus, they should not just quit if they intend to file for unemployment benefits. Ohio courts have stated "[a]n employee must advise their employer of a medical condition and allow the employer to adapt the employment accordingly before a medical condition can constitute ‘just cause’ for quitting under R.C. 4141.29(D)(2)(a)." Reichart v. Administrator (Aug. 13, 1984), Montgomery CP No. 84-631, unreported; see also Goldman v. OBES, (Dec. 21, 1977), Hamilton App. No. C-76-718, unreported. An employee who quits due to illness or injury but fails to ask the employer if positions are available which conform to the employee's medical condition, quits without just cause. Irvine v. Unemployment Comp. Bd. of Review (1985), 19 Ohio St.3d 15. (See additional note, 3) Social workers who fail to do so risk losing unemployment benefits. 


Deductions from Unemployment Compensation

Generally, if an individual has earnings in an amount less than the individual's weekly unemployment benefit during the week of an otherwise valid weekly claim, benefits are payable to that partially unemployed individual. The benefits will be paid in an amount equal to the individual's weekly benefit amount minus the amount of earnings in excess of twenty percent (20%) of the individual's weekly benefit amount, rounded to the next lower multiple of one dollar. RC § 4141.30(C). Hence, a social worker’s unemployment benefit may be reduced by the following types of deductible income: severance pay, vacation pay, pensions, company buy-out plans, and workers' compensation. On the other hand, the social worker’s unemployment benefit should not be reduced by other forms of income: Social Security, Supplemental Unemployment Benefits, U.S. National Guard/Armed Forces Reserve Pay for scheduled drills, interest, dividends, or rental income.

 

Thus, if a social worker is receiving PTO during the period they are eligible for unemployment benefits, the PTO will be deductible from their unemployment compensation, and likely would negate any claim for benefits (or reduce their benefit amount) because PTO is typically paid at one hundred percent of their earnings (the social worker’s work policies should be checked to confirm this). Such compensation would likely exceed any unemployment benefit amount for the week. (See additional note, 4)

 

If a hospital merely offers the social worker the option to use PTO or take layoff, furlough or a reduction of hours in lieu of using PTO, and the social worker chooses layoff, furlough or reduction of hours, this should not defeat their unemployment compensation claim. While rejecting an offer of suitable, alternate work would defeat an unemployment claim, merely offering the option to use PTO to cover a period of unemployment would likely not do so. We are not aware of any case so holding. As mentioned above, the Executive Order’s “access to leave” language apparently disqualifies a social worker from the expanded Ohio unemployment benefits for isolation and quarantine if the social worker would be eligible to cover the period of isolation or quarantine with PTO. So, in that narrower situation, the offer of “access to PTO” will likely disqualify the social worker from unemployment benefits. Of course, if the offer of PTO is contrary to the terms of any employment contract, then it could constitute a violation of that employment contract. 

 


Initial Week Waiting Period Waived

Generally, there is a waiting period of one week before an individual suffering total or partial unemployment is eligible for benefits. RC § 4141.29(B). However, under the Executive Order, the waiting period is waived. So, an eligible social worker will receive unemployment compensation for their first week of unemployment. This provision has just been mandated under the recent Emergency Unemployment Insurance Stabilization and Access Act of 2020, and is also codified in the federal stimulus law and the passed Ohio legislation (H.B. 197).

 


Enhanced Federal Stimulus and Ohio Unemployment Benefits

The 880-page federal stimulus package passed and signed into law by the President on March 27th, which is called the Coronavirus Aid, Relief, and Economic Security Act’’ or the ‘‘CARES Act,’’ H.R. 748, provides certain enhanced unemployment benefits commencing retroactively to January 27, 2020, including an additional weekly $600 Federal Pandemic Unemployment Compensation payment on top of existing state unemployment benefits for a maximum of thirty nine weeks, subject to further extension rules. Section 2104(b)(1)(A) and (B). Further, sick employees who have the coronavirus can collect unemployment as well if they are not receiving paid leave benefits.

 

The bill mandates extension of coverage to an individual who is otherwise able to work and:
1. who is not eligible for regular compensation or extended benefits under State or Federal law or pandemic emergency unemployment compensation;
2. who has exhausted all rights to regular unemployment or extended benefits under State or Federal law or pandemic emergency unemployment compensation;
3. who is unemployed, partially unemployed, or unable or unavailable to work because the individual has been diagnosed with COVID–19 or is experiencing symptoms of COVID–19 and seeking a medical diagnosis;
4. who is caring for a household family member who has been diagnosed with COVID–19;
5. who is primary caregiver for a child or other person in the 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 this prevents work; (See additional note below, 5)
6. who is an employee or new hire that is unable to reach the place of employment because of a COVID-19 quarantine or health provider self-quarantine;
7. who has become the breadwinner or source of major support for a household because the head of the household has died from COVID–19;
8. who has to quit his or her job as a direct result of COVID–19 due to closure of the place of employment; or,
9. who is self-employed, is seeking part-time employment, does not have sufficient work history, or otherwise would not qualify for regular unemployment or extended benefits under State or Federal law or pandemic emergency unemployment compensation.

 

Section 2102 (a)(3)(A)(ii)(aa) – (ll).

Notwithstanding the above, an individual who has the ability to telework for pay, or an individual who is receiving paid sick leave or other paid leave benefits, remains ineligible for unemployment insurance benefits during the period covered by the paid leave. Section 2102 (a)(3)( B). 

 

This federal legislation requires states to sign agreements with the federal government consistent with its provisions to secure federal assistance during the pandemic. Ohio legislation in Amended Substitute House Bill 197 codified the governor’s Executive Order on unemployment compensation to: 1) waive the first week waiting period, 2) change eligibility to include COVID-19 related unemployment situations as described above, and 3) waive the work-search requirement. 


Footnotes

1. Note that this “able to work” requirement” has meant in the past that the individual must by physically able to work during each day of the week claimed in order to meet this requirement. Hence, an individual who was physically unable (injured or sick) to work for even one day during the week claimed would not be entitled to benefits for that week.

 

2. Note: If an asymptomatic social worker self-quarantines because of a fear of the coronavirus, in most cases the social worker would not be entitled to unemployment benefits, as the loss of employment was the individual social worker’s choice, and not one imposed by a medical professional, local heath authority or employer. See Coronavirus and Unemployment Insurance Benefits, File Online: https://unemployment.ohio.gov/ (3/16/20), question 5.

 

3. By way of comparison, any social worker with a qualifying disability under the Americans with Disabilities Act should likewise seek reasonable accommodation within the meaning of that statute. See Section 6.c. below. 

 

4. Note that if the employer allocates the PTO payout to the last day of work in a layoff, then the future PTO payments during the layoff likely will not affect or reduce unemployment benefits. Indeed, the employer may be able to charge the layoff to the state mutual account, rather than its own unemployment account and therefore absorb no costs. The social worker would be allowed to receive unemployment and PTO simultaneously. 

 

5. Note that effective March 25, 2019, by Ohio Department of Health Director’s Order all Ohio facilities providing childcare services are closed unless they possess a Temporary Pandemic Child Care License issued by the Department of Job and Family Services. At his press conference on March 23, 2019, the Governor directed childcare facilities who receive this temporary license to give priority to children of certain workers, including healthcare workers 

 


 

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