Washington: COVID 19 and Voluntary Termination/Unemployment Benefits

Workers’ Compensation

Is time loss due if a worker performing modified duty takes a voluntary layoff in the context of COVID-19?

According to RCW 51.32.090(4), if a worker is performing modified duty and that modified duty “comes to an end”, before his or her recovery is sufficient to permit a return to the job of injury or other available work offered by the employer of injury, time loss should be reinstated.

The COVID-19 pandemic has led to many layoffs and company closures. If a worker performing modified duty loses his or her job due to a company shut down or involuntary layoff due to lack of business, the modified duty will have come to an end under RCW 51.32.090(4). Therefore, time loss will be due unless the employer establishes the worker is capable of reasonably continuous employment in work that is generally available on the open job market. Doing so may be very difficult at this point considering the numerous shutdowns.

However, there is a question as to whether a worker performing modified duty is due time loss if he or she takes a voluntary layoff. In In re Christine Sweat, the Board addressed the impact of a voluntary termination on time loss. This matter involved an injured worker employed for a retail chain store. In re Christine Sweat, Dckt. No. 04 25585 (June 8, 2006). The worker voluntarily quit her light duty position to move to a rural town far away from any of the employer’s locations. The Board concluded the worker was not due time loss following the move because she voluntary relinquished her light duty job:

“The dispositive factor in this appeal is not whether [claimant] had a ‘justifiable reason” for relinquishing employment’ but rather whether the loss of the job and any subsequent failure to obtain employment was proximately caused by the industrial injury.”

The Board did not classify the termination as light duty “coming to an end” under RCW 51.32.090(4)(b).

Conclusion

In re Christine Sweat presents a good argument that time loss is not due in the event of a voluntary termination for reasons unrelated to the industrial injury. However, this is not a significant decision. In addition, the Department may not consider a voluntary termination in the context of COVID-19 truly voluntary in comparison to In re Christine Sweat.

Unemployment and COVID-19

The Employment Security Department issued emergency rules for unemployment benefits in the context of COVID-19 pandemic. A worker is eligible for unemployment under one or more of the following circumstances:

• The worker is mildly ill with COVID 19
• The worker was exposed and quarantined [employer remains open] • The worker is immune-compromised and advised to self-quarantine
• The employer must shut down due to a quarantine by a public official
• The employer shuts down due to a business slowdown or lack of demand
• The employer reduces available hours due to business shutdown or lack of demand

However, RCW 50.20.085 states that an individual is disqualified from unemployment benefits with respect to any day or days for which he or she is receiving, has received, or will receive time loss or loss of earning benefits under RCW 51.32.090.

Conclusion

If a worker is due time loss or LEP based on a layoff in the context of COVID-19, those benefits will not be offset by Washington state unemployment benefits.

Paid Sick Leave and COVID-19

Under Washington state law, an employee can use paid sick leave d in accordance with RCW 49.46.210(1)(b) and (c) to cover absences if his or her employer is closed by a public official in connection with COVID-19.

In addition, the federal Families First Coronavirus Response Act (FFCRA or Act) provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 including:
• Being quarantined
• Experiencing COVID-19 symptoms
• Being unable to work because of a bona fide need to care for an individual subject to quarantine or child whose school or because a child care provider is closed due to COVID-19

Conclusion

The FFCRA applies to private employers with fewer than 500 employees. It is not clear at this point how the FFCRA will apply to a worker who is already receiving time loss benefits under workers’ compensation. We anticipate the time loss benefits will be primary and might be eligible to be supplemented by FFCRA benefits if the latter provides greater compensation.

If you have any questions regarding Washington leave during COVID-19, you can contact me at eaaberg@sbhlegal.com or (503) 595-6114 .