We recently received the following question and know that it is a common issue facing folks during this pandemic. Our employment attorney, Chisa Chervenick, answers it below.

My Boss obtained PPP and wants me back to work to do training activities and organizing. I have children and there is no childcare for them at this time. I’m collecting unemployment. What do I do?

The Payroll Protection Program (PPP) loan requires employers to maintain payroll and staffing for the duration of the loan to have the full amount of the loan forgiven (assuming documentation reflective of qualified expenses); however, the loan should not, and is not intended to, make any changes to essential or non-essential designations. With or without the loan, employees who cannot work from home should not be required to report to work if they are non-essential employees or if the business is non-essential. The intent of the PPP loan is to provide employees with the security of employment and their paycheck while being subject to a stay at home order or to assist essential employers to continue to meet payroll if revenue is down due to COVID despite remaining open. 

As I don't have all the facts regarding your employer's plan and the applicable state law, my answers are partially founded in assumptions - but any training activities to improve the office during the duration of the stay at home order must not be conducted on-site and must be done remotely. If by “organizing” you mean physically organizing and cleaning the office, then that would not be an appropriate activity during the stay at home order as it would require the physical presence of non-essential employees in the workplace for non-essential activities. Even if a business is essential, that does not mean it's essential for all purposes, nor does that mean all of its employees are essential. Non-essential work should be ceased and non-essential personnel should remain at home. 

That being said: the options that may be available to you will depend, in part, on the laws applicable to your employer.

Typically and depending on the law in the state, you cannot decline suitable employment and remain eligible to collect unemployment benefits. A job offer is considered suitable employment if the wages are substantially lower or the physical demands are substantially greater than your previous role, for example. In this case, you would be receiving an offer to return to the same role, so it would be considered suitable employment. If you decline to accept your employer's "job offer," you may lose your unemployment benefits. 

Depending on your relationship with your employer, you may consider having a discussion with them about the challenges you're facing with childcare and ask to remain on unemployment. Your employer may accept or decline your request. Keep in mind that your employer is under no obligation to bring you back from unemployment at a later date. He may elect to hire another candidate to fill your role. While I would hope that's not the case, it is a possibility requiring your consideration. However, some points for discussion with your employer: 

1.    Under the CARES Act and the terms of the PPP loan, your employer will not be "penalized" by having his loan forgiveness amount reduced so long as he brings back the staff he's laid off by 6/30 - perhaps he'd be willing to leave you on unemployment until closer to that date if he were aware that he has until then to bring you back without penalty.

2.    If you are brought back onto payroll, as discussed above, non-essential business activities should not be occurring outside of individual homes. If you can complete work at home, you may be required to telework. If you cannot telework in your role, then, essentially, the PPP loan is asking your employer to continue to pay you your normal standard paycheck while you are sitting at home doing nothing - the PPP loan doesn't require employees to return to "work", it requires employees to return to "payroll"- whether or not there's work for them to do.

3.    If the employer does not bring the entire staff back onto payroll, the amount of the PPP loan forgiven will be decreased proportionately to the decrease in staffing, which means that instead of having 100% of qualified expenses forgiven, perhaps 75% of that is forgiven instead. The remaining balance of the loan after forgiveness carries a 1% interest rate with no prepayment penalties - while the employer is "penalized" for the reduction in staffing, the "consequences" are an extremely cheap loan with a lower interest rate than they would have otherwise been able to secure for funding from anywhere else. In the grand scheme of things, perhaps being down by one staff person isn't as consequential to the employer in that light.  

If your employer insists that you return to payroll, your employer may be required to provide expanded emergency family medical leave as provided under the Families First Act. Employers with under 500 employees are subject to this Act, although some employers with fewer than 50 employees may be exempt from providing leave. If it applies to your employer, the Act requires up to 12 weeks of emergency family medical leave for purposes of caring for a child whose school is closed or whose childcare provider is unavailable because of COVID. Employees who've worked for an employer for at least 30 days are eligible to apply for this leave and will receive 67% of their salary for up to 12 weeks of leave, subject to a cap of $200 per day/ $12,000 total for the duration of the leave. Your employer will be entitled to tax credits to offset the cost of providing this leave.