Tesla says a refusal to work means employees are no longer on furlough, jeopardizing their benefits.
Workers wary of virus unlikely to lose benefits
As Tesla’s Fremont factory ramps up production, some employees are being told by managers they could lose their unemployment benefits if they do not return. For those who fear coronavirus infection while working at the plant — which resumed operations this week in violation of local health orders — the message is seen as a choice between their health or their paycheck.
But new guidance from the state appears to contradict the warnings from Tesla management. The California Employment Development Department now says employees can refuse work that is “unsuitable” and continue to collect unemployment benefits.
An email sent to Tesla employees Wednesday by management and obtained by The Chronicle said once recalled by a manager, workers will no longer be considered on furlough, which may affect their eligibility for their unemployment benefits.
The email from human resources executive Valerie Workman said those determinations would not be made by Tesla but by government agencies and that employees will remain furloughed until they are contacted by a manager and asked to return. Workman wrote that employees can continue to apply for unemployment
benefits and have access to company health benefits until then, and that the company would not penalize employees who choose not to return to work.
One worker at the Fremont plant has stayed home for weeks for fear of contracting the coronavirus, collecting unemployment benefits for part of that time. That worker’s manager wrote in emails — before the EDD’s guidance and Workman’s email came out — that staying home would be considered unpaid leave and that unemployment benefits could be affected by refusing to return to work.
The worker was granted anonymity under The Chronicle’s policy on anonymous sources, based on a reasonable fear that Tesla could take retaliatory action for speaking to the press about working conditions.
Tesla did not immediately respond to an emailed request for comment regarding how the new guidance affected its plans for reopening or the instructions managers were giving workers.
Under normal circumstances, the state can deny or suspend unemployment payments if an employee refuses work, unless the position is considered “unsuitable.” In its guidance, the EDD explicitly notes a job can be considered unsuitable if a workplace is not essential or has not met state or local requirements for reopening, which is the case at the Fremont facility.
The agency also noted that older employees or those with underlying health problems could potentially continue receiving unemployment benefits even if an employer reopens its doors.
“Even if your employer has complied with the state’s requirements for reopening, and any and all government safety regulations, you would have good cause to refuse to return to work if you are at greater personal risk due to higher risk factors,” the EDD said.
“It’s not up to the employer whether (workers) get benefits,” said Arkady Itkin, a San Francisco employment lawyer. “These people are not reporting to work because they want to comply with the (shelterinplace) order,” Itkin said. Refusing to violate a county order by returning to work is a “substantial, compelling reason” to continue to not work and continue to receive unemployment benefits, he said.
The Tesla plant has been operating against Alameda County orders to remain shut since the weekend. It had closed in late March, after defying those same orders for almost a week.
In April, the electric car maker furloughed some workers and cut pay for salaried employees, according to emails obtained by The Chronicle. That made some workers eligible for the unemployment benefits the company is now calling into question.
Although the state has allowed counties to lift some restrictions on manufacturing, Alameda County has not given permission to the factory to operate. In a statement Tuesday, the county confirmed it is working with Tesla on a reopening plan and that the facility could be allowed to reopen next week, even though the plant is currently violating the orders.
Tesla had been working with county officials to reopen the plant for weeks before CEO Elon Musk announced plans to restart production lines ahead of schedule.
Alameda County Supervisor Scott Haggerty, whose district includes Tesla’s Fremont plant, previously said he was “confident” that county health officials and the company would be able to reopen the plant with a target date of May 18 according to Shawn Wilson, his chief of staff.
Despite the ongoing talks, Tesla sued the county in federal court over the weekend, demanding the company be allowed to run operations in Fremont. Its lawyers argued that state guidance on manufacturing supersedes Alameda
County’s shelterinplace restrictions. Gov. Gavin Newsom confirmed this week that local health officials could set stricter rules than the state’s minimum requirements, a stance that has not changed since his administration first imposed statewide shelterinplace rules in March.
Musk has called restrictions on business operations to combat the spread of the coronavirus “fascist” on his muchfollowed Twitter account. He said he would relocate the company’s headquarters from Palo Alto to another state in response to Alameda County’s requests that Tesla comply with the orders.