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SC jobs agency encourages employers to report people who don't return to work

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The S.C. Department of Employment and Workforce is encouraging businesses to report any former employee that declines an offer to return to work and, instead, chooses to remain on unemployment during the pandemic. Lauren Petracca/Staff

South Carolina officials are encouraging employers to report people who turn down an opportunity to work, raising concerns about the state forcing someone back into a job amid the coronavirus pandemic.

Dan Ellzey, director of the S.C. Department of Employment and Workforce, recently announced week that companies should notify his agency if their former workers choose to stay on unemployment instead of returning to the jobs they held prior to the public health crisis.

"The law is crystal clear," Ellzey said. "If you make an offer and someone refuses it, you should notify us. We will investigate why they did it, and if they didn’t have a good reason we will stop it."

The state's policy of kicking people off unemployment once they receive a job offer isn't new, but it's likely to gain far more attention as Gov. Henry McMaster attempts to lift the public health restrictions and restart the state's economy.  On Friday, McMaster said he will suspend his stay at home order effective Monday and allow restaurants to serve diners at outdoor tables.

The rules for when someone on unemployment can turn down a job are likely to become more difficult to sort out as the potentially deadly virus continues to spread throughout the country. Attempts to remove people from the state's unemployment system are also likely to be met with legal challenges. 

Normally, jobless benefits are designed to replace only a portion of someone's income for a set amount of time. In South Carolina, that traditionally meant people could earn up to $326 per week for a maximum of 20 weeks — or until they were offered a new job.

But that all changed in late March when Congress passed a $2.2 trillion economic relief package. That legislation, known as the CARES Act, temporarily expanded unemployment benefits for everyone by $600 per week until July. And it allowed people to qualify for an additional 13 weeks of assistance. 

Those changes were enacted to ensure the millions of Americans who filed for unemployment could obey the new public health restrictions and still pay their rent, mortgages, car loans and medical bills during the pandemic. 

Still, the policy changes didn't pass without criticism.

South Carolina's Republican senators, Lindsey Graham and Tim Scott, both complained that low-income workers could make more money off unemployment than they did working full-time jobs. And they suggested it would encourage people to remain in the system.  

That likely won't be an option for many South Carolinians with DEW focused on policing the unemployment rolls and booting anyone who receives an offer to return to work. 

The agency has a form available for businesses to report employees who decline to come back to their former jobs.

"Fill it out, send it to us and we will take it over from there," Ellzey said last week. 

But the rules that DEW relies on to reject an unemployment claim are likely to be complicated by the coronavirus. State regulations say the department needs to review a number of things before it can cut off someone's benefits. 

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For instance, the agency needs to consider the "degree of risk" involved to that person's health and safety if they are required to return to work.  

That raises new questions with the novel coronavirus still spreading and a vaccine unlikely to be developed and deployed in the near future.

Can a hotel, retail or restaurant employee refuse to go back to work because they are concerned about contracting the virus themselves? What if a factory worker chooses not to take up their job immediately because they don't want to bring the virus home to their child or elderly parents? 

Will people be allowed to remain on unemployment if they have an underlying health condition that makes them more likely to be hospitalized by the virus? Can workers over the age of 60 cite the higher mortality rate among their age group? 

The state regulations also say DEW needs to take someone's "morals" into account. 

Is it enough for someone to be morally opposed to returning to work for fear of contributing to a potential surge in hospitalizations and deaths? 

DEW did not respond to questions about how the rules will be interpreted. 

Rep. Gilda Cobb-Hunter, the longest-serving member in the S.C. House, said it is "unconscionable" that a state agency would force someone to return to work right now against their will. 

Cobb-Hunter, D-Orangeburg, said she understands the economy needs to be restarted at some point. But she is concerned about reopening workplaces without more of a focus on testing and tracing the spread of the virus.

Data from the S.C. Department of Health and Environmental Control shows roughly 56,000 people have been tested in South Carolina as of April 30. The state has an estimated population of 5 million people. That means roughly 1 percent of South Carolinians have been tested.  

Many of the people who could be forced off unemployment and back into the workforce, Cobb-Hunter argued, are the people who can least afford it. They are going to be people from marginalized communities, she said. They fill jobs where you can't telecommute or work from home. 

She questioned what happens when waitresses who make less than minimum wage are forced to return to work but are unable to collect the tips that normally make up the bulk of their income. 

"I don't think people are thinking clearly," Cobb-Hunter said. "The reality is that it will be low-wage workers who will be forced to work." 

The state, Cobb-Hunter argued, is likely setting itself up for protracted legal battles. She believes the reference to people's health and safety in the state regulations will allow people to make a strong case for why they should be allowed to remain on unemployment. 

"That language means South Carolina can get ready for a bunch of lawsuits," she said. "It's going to be great employment for lawyers." 

Seanna Adcox of The Post and Courier contributed to this report. Reach Andrew Brown at 843-708-1830 or follow him on Twitter @andy_ed_brown.

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