‘Refuse to work’ unemployment pay is based on old law

A worker out on furlough, or with no position at all, can refuse a job offer — including from the employer calling the worker back — and still receive unemployment benefits through late July.

That includes cases in which a worker might fear passing an infection to an individual at home who is at heightened medical risk.

How can that be? It’s part of an executive order that Gov. Ned Lamont issued Monday night, with no fanfare. Under the rule, the worker must claim a medical conditions that coronavirus could exacerbate — and a reasonable fear they could contract COVID-19 at the offered job.

That order is one of the reasons Connecticut could see an extended period of workers staying on the sidelines while they wait out the pandemic.

Lamont’s order gives some unemployed workers a measure of relief as they weigh medical risks against any immediate job offers while balancing the need for long-term economic security. And while it may appear to have come from left field, the policy is based on existing labor laws, the Americans With Disabilities Act of 1990 and the structure of the pandemic relief by Congress.

As of mid-May, more than 40,000 Connecticut residents getting jobless benefits were 60 or older, the age brackets at which

health officials are cautioning people to take extra precautions.

More than 530,000 state residents having been processed for jobless compensation, which pays half the average rate of their prior earnings plus the temporary bumps of an additional $600 weekly and an additional $500 for each dependent.

With the Lamont order taking effect immediately, people can now refuse new or returning job offers and continue with jobless benefits if approved by the Connecticut Department of Labor. It’s also related to a new benefit for self-employed workers under the new Pandemic Unemployment Assistance program.

“PUA already comes with criteria stating that you have to be able and available to work ‘unless’ — and it lists out, very clearly, criteria for those who are most vulnerable,” said Danté Bartolomeo, deputy DOL commissioner. “Folks will now be asked if they had refused any suitable work, (it) links to CDC guidelines for them to be able to verify ... if they have chronic, serious illnesses.”

A related scenario came up early during the pandemic, testing rules from the U.S. Department of Labor that beneficiaries had to demonstrate they are actively seeking work in order to receive benefits, and must be willing to accept job offers as they surface — with exceptions for situations like excessive commuting times.

Lamont’s order “would enable somebody who is over age 65 to ... continue to receive unemployment,” said Gary Phelan, an employment law attorney and partner with Mitchell & Sheahan with offices in Stratford and Westport. “It’s recognizing the unique circumstance — time and place — that we’re in right now.”

Only the week or two before the coronavirus pandemic hit, Phelan negotiated a settlement in a legal dispute between an employer and a worker who wished to be able to work from home as an accommodation for a condition covered under the Americans with Disabilities Act.

In mid-May, Phelan led a Connecticut Bar Association webinar after the U.S. Equal Employment Opportunity Commission updated its own guidance to allow an employee with a risky medical condition to request accommodations to reduce the chances of contracting coronavirus. Under the EEOC guidance, employers are allowed to ask for supporting medical documentation.

For many jobs, the easiest accommodation is to allow an employee to continue working from home if the job requirements allow them to, or otherwise transitioning them to that kind of work until pharmaceutical companies come up with vaccines or cures for COVID-19.

Phelan noted that work-from-home arrangements were among the earliest accommodations that employers implemented to comply with the ADA. But he said disputes continue to arise.

“I’ve done many working-from-home cases over the years — they are often fought very hard by employers,” Phelan said. “The majority of courts have said — in most cases, depending on the job — that working from home is an essential function of the job. Ironically, that was laying the foundation for looking at (whether) working in the office is really essential?”

He added, “That’s been transformed, and that’s what I think has been a catalyst.”

Includes prior reporting by Ken Dixon.