by Julie Havlak

When she found a job in May, Greensboro resident Alyssa Trent started working in a call center for unemployment benefits. Now she worries she will need those benefits herself.

Trent is a working mother, and she faces a grim choice. If schools don’t reopen, she can’t keep her job. But she needs the income. Her husband works as a baker in a catering company, and he’s already appealing his own unemployment benefits. Her household has only one car, and their only laptop is her work computer.  

“I don’t know what we’re going to do,” Trent told Carolina Journal. “It’s unnerving. … We’re stuck in a situation where we want to better ourselves, but then our kids. We’re having to teach at home.”

A proposed rule change would open unemployment benefits to parents affected by remote learning for up to 270 days — and to any workers who reasonably believe they aren’t safe from the virus at their workplace.

The problem? It’s not legal, says Joe Coletti, John Locke Foundation senior fellow for fiscal and tax policy. Gov. Roy Cooper’s administration issued an emergency rule effective June 26 expanding access to unemployment benefits for 60 days. But its proposal to extend the rule for nine months overreached its legal authority, Coletti said.

Moreover, if this rule is extended, it could provide people like Trent an offer they couldn’t reasonably refuse — leave the workforce to help their children.

Since March, more than 1 million North Carolinians have filed for unemployment benefits. The state unemployment rate fell to 7.6% in June, after soaring to 12.9% in April. More than 800,000 people have received $6.1 billion, but roughly two-thirds of that relief came from federal benefits set to expire this week, according to the N.C. Division of Employment Security

“[Cooper] was making it virtually impossible for people to hold a job,” Coletti said. “Instead of addressing the core problem, of how to open schools safely and allow people to work, the DES is looking for how they can make it possible for people to not work. Which creates a double bind. The longer you’re unemployed, the harder it is to get back into the workforce.”

The General Assembly opened unemployment benefits to four narrow groups:

  • Employees who lost hours.
  • People diagnosed with COVID-19.
  • Workers whose employer temporarily closed because of the virus.
  • Residents quarantining under the instruction of a health care provider or a governmental official.

The DES proposed rules that would go much further. Their rules would extend benefits to people who refused work for any of the following:

  • Parents whose children can’t attend schools that are closed as a result of the pandemic.
  • Workers who have “objective reasons that the employer’s facility is not safe.” This would also cover people who “reasonably believe there is a valid degree of risk to the claimant’s health and safety due to a significant risk” of workplace exposure because of the failure of an employer to comply with state or federal guidelines.
  • People who refuse work to comply with any governmental order regarding travel, business operations and mass gatherings.
  • High-risk people who are older than 65 or who have serious underlying medical conditions.

People already qualify if they meet any of these categories, but that eligibility will expire in August when the emergency rule goes away. DES wants to extend that with a temporary rule that will last up to 270 days. 

But the department doesn’t have the authority to write laws, says Coletti. Legally, that belongs to the legislature.

“There’s nothing in any of the laws that say anything about [those categories],” Coletti said. “It can’t create categories that aren’t in the law. … This completely ignores what the actual state law says.”

The John Locke Foundation has challenged the rule at the Office of Administrative Hearings, which handles challenges of proposed rules.

Senate leader Phil Berger’s spokeswoman Lauren Horsch said the category concerning workplace risks raised concerns. She questioned how DES would confirm the risk of infection.

“Failure to comply, who’s to judge that?” Coletti asked. Disgruntled workers who say they feel unsafe could walk off the job, he said. 

“The people who rely on these benefits are out of work through no fault of their own,” Cooper wrote in an opinion piece. “We’ve seen COVID-19 create the highest unemployment since World War II and completely change our way of life. But it hasn’t changed the fact that people still need to pay their rent, put food on the table and make ends meet.”

Cooper has blasted Republicans for slashing unemployment benefits, while Republicans accused him of killing jobs with lockdowns and closed schools.

This isn’t the first time Cooper’s administration has clashed with Republicans over the rulemaking process that is controlled by N.C. Rules Review Commission.

In May, the State Board of Elections asked the commission for emergency powers. Republican lawmakers pilloried the board’s request as a “back-door attempt to rewrite election laws” in a swing state. Commissioners unanimously rejected the board’s proposed rules. 

The Rules Review Commission is staffed mainly by Republicans, and it has a history of interpreting agencies’ rulemaking authority narrowly. It is expected to review the rule change during its next scheduled meeting Aug. 20.

If Trent could send her sons to an in-person school, she doesn’t know whether she would. She fears the virus, but she also worries her children are falling behind.

“Last year, when school was out, it was heartbreaking for my 6-year-old. My youngest son befriended a stick,” Trent said. “He has nobody to relate to. He’s stuck with his parents.”

Military spouse Michelle Johnson told CJ she doesn’t want to go on unemployment benefits, either. But if schools stay closed past September, she also faces losing her job, her retirement, her savings, and her insurance. 

“Financially, I have no idea. I don’t think I could afford it. That’s my biggest fear. I don’t want to have to ask for assistance,” Johnson said. “All of that is in jeopardy because of that. I really, really don’t want to lose my career. That’s the last thing I want to do.”

If she takes unemployment, Johnson doubts her chances of getting back into the workforce. But she feels she has little choice.

“I like where I work, I really enjoy it,” Johnson said. “What if I don’t find a good job?”

DES didn’t respond to request for comment.

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