Articles

COVID-19 and Unemployment Benefits

June, 2020

COVID-19:  GOING BACK TO WORK IF IT’S NOT SAFE FOR ME OR MY FAMILY?

During this COVID-19 pandemic, many Connecticut employees have been laid off, furloughed and working from home for the past two months.  Governor Lamont will be initiating Phase 2 of businesses reopening on a continuing limited basis effective June 17, 2020.

But new questions remain affecting the safety and health of employees as employers begin to partially open up and request that employees return to the job.  The main question looming:  “Is it safe for me to return?”

On June 1, 2020, Governor Lamont issued Executive Order No. 7UU.  While the majority of the Executive Order deals with staff testing for nursing homes and assisted living centers, a portion of the order provides for extension of unemployment benefits when the Connecticut Department of Labor makes a determination that the workplace that the employer is offering is not “suitable work.”

Specifically, the Executive Order reads as follows:

“In determining whether or not work offered is suitable for an individual, the Administrator [the Labor Department official at the first step of the unemployment process] shall consider the degree of risk to the individual’s health, or due to the COVID-10 public health emergency, the health of a member of that individual’s household.  In determining the degree of risk, the Administrator may consider the individual’s or household member’s health, his or her physical capabilities, the physical and mental requirements of the job, working conditions and the existence of any medical documentation concerning the individual’s limitations.  Where an unreasonable risk to the individual’s health or, due to COVID-19, the health of a member of that individual’s household is established,  the Administrator shall find the work to be unsuitable for the induvial.” [emphasis added].

So, an employee who establishes circumstances that it is not safe to return may be eligible to receive or continue unemployment benefits on a case-by-case analysis by the CT Labor Department.

In its introduction, Governor Lamont’s Executive Order clearly states the risk inherent for older individuals: 

“WHEREAS, the risk of severe illness and death from COVID-19 is higher for individuals who are 60 or older and for those who have chronic health conditions;”

But, even though an employee can collect unemployment benefits, is she/he in danger of losing the job?

Under normal circumstances, absent factual and legal support, an employee who refuses to return to work may be terminated by the employer as “abandoning the job.” 

But these are different times.  An employer who discharges an employee who refuses to accommodate an employee by eliminating the COVID-19 worksite risk to the employee’s health or the employee’s family health could be liable to many causes of action ranging from retaliation for collecting unemployment benefits, discrimination/retaliation for violation of Connecticut and Federal disability law protections, public policy violations, as well as other statutory and common law protections.

In one recent case which came to my attention, a 68-year old employee, with an underlying heart condition, was called back to his work which would involve entering residences.  Even though he produced a note from his cardiologist stating the risk to this employee’s health, the employer refused an accommodation which would have allowed him to perform his duties in unoccupied housing.

If you have an employment issue, always call a knowledgeable employment attorney before you take any action with your employer.