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Colorado unemployment agency continues trend of ruling in favor of workers who decline to return to work

A previous post addressed the requirement that workers return to work — or face loss of unemployment — when an offer to return (to comparable work) is extended, unless the worker is a “vulnerable individual” or otherwise unable to return due to coronavirus-related reasons. As noted there, the initial report was that the state was tending to find in favor of employees by a large margin. The Denver Business Journal is reporting today that the state unemployment agency is continuing that trend, now finding 84% of the time in favor of workers.

Colorado Department of Labor and Employment officials have received about 1,100 submissions from employers about workers who have refused to come back to work in recent weeks and want to keep receiving jobless benefits. And of the 869 cases that CDLE officials have adjudicated, only 16% have ended in workers being told to return to their positions or give up their unemployment payments, chief communications officer Cher Haavind said.

In the vast majority of cases, workers claiming they can’t safely return to work fall into one of two categories delineated by federal and state law as allowing them to refuse to go back to an environment where they would interact with many co-workers or customers, Haavind said. One is that they are part of a vulnerable population that would make them more susceptible to catching coronavirus — people over age 65 or who have underlying medical conditions such as heart troubles or being immunocompromised. The second is that they are caring either for someone who is at increased risk of contracting the virus or are caring for a child out of school.

Colorado unemployment disputes skyrocket as employers begin to offer returns to work that employees decline, with CDLE at least initially tending to rule for workers

As previously posted on this blog, the Colorado Department of Labor and Employment Unemployment created a new portal for employers to use to report when an employee refuses after being offered to return to work; the refusal will generally render the individual ineligible for further unemployment, unless the individual can prove they are “vulnerable” and that the company has inadequate coronavirus protections in place.

The Denver Business Journal is reporting that approximately 150 workers have already advised the Colorado Department of Labor and Employment that they do not wish to return to work and would rather stay on unemployment due to concerns about coronavirus, while 200 employers have used the new portal to report refusals.

How is the CDLE handling these disputes? The Denver Business Journal advises the agency is attempting to investigate each claim individually, without agency representatives actually going to jobsites though.

Instead, workers will be asked to explain what underlying condition they have that makes it unsafe for them to return to work or why they feel the workplace is an unsafe environment, and employers will be asked if the worker is coming back at the same job and pay rate and if efforts have been made at increased sanitation and social distancing.

Who’s winning these disputes? For now the Denver Business Journal reports the CDLE is ruling generally in favor of the workers.

So far, CDLE officials, who have gone through about 55 claims, are coming down on the sides of the workers at a ratio of about 10-to-1, said Jeff Fitzgerald, unemployment insurance division director.

The CDLE does not explain in the article how it plans to address this issue going-forward especially if, as reported in the Denver Post, the combination of traditional unemployment benefits plus pandemic unemployment benefits is high enough that a “majority” of workers in Colorado are actually earning more money on unemployment currently than they would in their job if returned.

The cutoff point is around $30 an hour in Colorado, according to the study by Gregory Miller, a CFA and graduate researcher at CSU. Make more than that and the financial incentive is to return to work. Make less than that, and collecting unemployment pays better, especially if a job doesn’t come with health insurance and other benefits.

The combination of that “financial incentive” plus health concerns about the possible coronavirus-related implications of returning to work around others, even subject to Colorado’s social distancing guidelines, means the CDLE is going to be required to address many, many more such disputes going-forward.

Colorado Unemployment releases website to report an employee’s refusal to return to work

In Colorado, Governor Polis’ safer-at-home order remains in effect but permits certain employers to begin reopening subject to certain conditions at various times.

What if an employer decides to reopen in accordance with that order, but an employee feels they would be “safer at home,” may that employee decline an offer to return to work and continue to receive unemployment (traditional and/or pandemic) benefits? 

The Colorado Department of Labor and Employment has issued a FAQ explaining that it will depend on the circumstances. As a general rule, the answer is, no, that worker may not choose to decline the offer, without losing unemployment; in other words, that worker would, be declining the offer to return to work, become ineligible for further unemployment benefits. That general rule allows one exception for workers who can establish they are “vulnerable” and further that the company’s workplace lacks sufficient precautions to permit safe distancing, etc.

What if my employer is requiring me to return to work but I don’t feel safe?
● Per Safer at Home Executive Order D 2020 044, no vulnerable individuals can be compelled by their employer to return to work if their work requires in person work near others.
● Employers must accommodate vulnerable individuals with remote work options, if the work can be done remotely.
● If you refuse to return to work due to unsatisfactory or hazardous working conditions based on your status as a member of a vulnerable group, you may continue to be eligible for benefits based on the risk to your health.
● If you refuse to return to work due to unsatisfactory or hazardous working conditions because you reside with a person who is a member of a vulnerable group, you may continue to be eligible for benefits based on the risk to the health of your co-inhabitant.
● If an employer requires work from an employee entitled to paid leave (due to illness or a quarantine/isolation order) under the Colorado HELP Rules, that would be unlawful under those rules, and should be reported to the contact information at the bottom of these FAQs.
● Any other possible violations of social distancing, or other health and safety orders, should be reported to the federal Occupational Safety and Health Administration or County health officials. https://www.osha.gov/contactus/bystate/CO/areaoffice

How will an employer notify the Colorado Department of Labor and Employment that a return offer has been declined?

Apparently anticipating the possibility that many people will want to decline offers to return to work, the CDLE has opened a special portal to permit companies to report that an offer to return was extended and declined.

Employees and companies alike should review the CDLE’s information. Individuals should realize that Governor Polis’ stay-at-home order does not give everyone the option to decline a return to work. As a general rule, an individual who declines an offer to return to work will lose unemployment. Companies can use the CDLE’s portal to report that the return offer was declined. Both individuals and companies should realize there may be exceptions for individuals who can show they are “vulnerable” and that the company’s safety precautions (social distancing, face-covering, etc.) are inadequate.

Wondering why the new coronavirus-related unemployment compensation (CARES Act unemployment benefits) are taking so long?

Visitors to Colorado’s unemployment page at the Colorado Department of Labor and Employment will see this update regarding the status of the new coronavirus-related unemployment benefits that will be available under the CARES Act:

Update as of April 12, 2020: We are still programming our systems to begin accepting claims for workers who are eligible for benefits related to the CARES Act, including those who are self-employed (retroactive as far back as February 2 or when your work stopped as a direct result of COVID-19). Programming is also underway for the Federal Pandemic Unemployment Compensation, which is $600/week additional benefit (retroactive to March 29). Claimants DO NOT need to take action for the additional $600 benefit. Benefits will be retroactive and eligible claimants will not lose benefits while you wait to file a claim. We appreciate your understanding.

If you are a traditional employee or pay premiums for your own wages, and are not working or had your hours reduced,  file a regular unemployment claim:

  • If your last name begins with a letter from A to M: Please file your unemployment claim on a Sunday, Tuesday, Thursday, or after 12 noon on Saturday.
  • If your last name begins with a letter from N to Z: Please file your unemployment claim on Monday, Wednesday, Friday, or before 12 noon on Saturday.

The CDLE should be commended for at least providing this update, and note it did so over the weekend on Easter Sunday. Indeed the CDLE reports it has on-boarded many new workers to process these payments and is working long hours to make it possible.

Readers who are curious, even frustrated, that it is taking so long may be interested in this article just published by Bloomberg BNA detailing some of the technical, legal, security and practical issues that each of the various states is facing as they all try to find ways to use systems that were never designed for this volume or type of payment, to accommodate this new federal program.

 

Unemployment Insurance Worker FAQs | Colorado Department of Labor and Employment

Want a handy reference of Frequently Asked Questions (FAQs) related to Colorado’s Unemployment Insurance Program and availability of unemployment benefits as we go through this coronavirus experience? Check the state’s FAQ here: www.colorado.gov/pacific/cdle/unemployment-insurance-worker-faqs

Colorado Court of Appeals clarifies unemployment eligibility rules related to marijuana use

The Colorado Court of Appeals has clarified how Colorado’s medical and recreational marijuana laws impact eligibility for unemployment. The case involved an unusual fact pattern that provided the court with a springboard to articulate four rules. The worker was on medical leave, but worked for a financial institution to which he personally owed money. Although he was on medical leave, he still had to come in occasionally to make payments on the loan he owed his employer. While there to make a payment, HR advised that he had come up for a random drug test, on which he tested positive for marijuana. Thus the Court was faced with a case where the person was still an employee but obviously not engaged in or even able to be engaged in actively performing job duties at the time he was tested.

The lower court looked at only one subsection of the unemployment-eligibility statute, CRS 8-73-108(5)(e)(IX.5). Subsection IX.5 renders a worker who tests positive for even otherwise lawful marijuana to be ineligible for unemployment if the test was taken “during working hours.” Because the employee was on medical leave, the court held his positive test did not arise from a sample taking “during working hours.” The lower court then held that because subsection IX.5 was so specific to marijuana, it was not able to look at other sections of the statute.

The Colorado Court of Appeals reversed. The Court of Appeals held that other subsections still apply, not just IX.5. Looking at all the other subsections, the Colorado Court of Appeals held there are at least four ways a worker can be disqualified form receiving unemployment in Colorado due to otherwise lawful marijuana use:

  1. A positive test “during working hours”;
  2. A positive test during or outside working hours that had or could have had an adverse impact on the company;
  3. A positive test during or outside working hours that interfered with the employee’s job performance;
  4. A positive test during or outside working hours that rendered the employee unable to meet “established job performance or other defined standard.”

Here is the full quote from the Colorado Court of Appeals:

Any conflict among the provisions at issue in this case is not irreconcilable.  Subsection (IX.5) disqualifies an individual for the sole reason that he or she had a positive drug or alcohol test while working, essentially dispensing with the need for an employer to establish any impairment of the employee’s abilities or adverse effect on the employer’s business.  However, subsection (VII) would apply where an employee violates an employer’s rule prohibiting drug use, whether on or off the job, but an employer would be required to demonstrate that the employee’s drug use had, or could have had, adverse impacts on the company.  Similarly, subsection (VIII) could be applied to off-the-job drug use but requires proof that the drug use interfered with the employee’s job performance.  And subsection (XX), when applied in a drug use or testing scenario, requires the employer to establish that an employee’s drug use or failed drug test caused him or her to fail to meet an established job performance or other defined standard.  Because there is no irreconcilable conflict, all provisions of the statute are amenable to harmonious construction, and thus must be given effect.  

Source: M&A Acquisition Corp. v. ICAO, — P.3d —, case no. 19CA0679 (Colo.App. 11/21/19).

Colorado Supreme Court holds referral service to be an employer, striking independent contractor classification

In contrast with the Trump Administration’s approach to so-called gig-economy cases, the Colorado Supreme Court recently struck one company’s attempt to classify its workers as independent contractors, not employees.

At the federal level, the Trump Administration has, through both the NLRB and DOL, recently held that (at least some) gig-economy companies, like Uber in particular, are technology companies that merely connect consumers with service providers (example, drivers), and as such, they may lawfully characterize — at least for federal purposes — those service provides as independent contractors.

In this case, the Colorado Supreme Court rejected a company’s argument that it was merely a referral source connecting consumers with housecleaners. The Court held the company was, therefore, liable for Colorado state unemployment taxes.

Does the case signal a rejection of the Trump Administration’s approach at the Colorado state level? Or is the case distinguishable from situations like Uber’s paradigm? These questions have yet to be litigated. It may simply be that the Colorado Supreme Court will reject, at the state level, at least for unemployment, if not also workers compensation, the Trump Administration’s approach at the federal NLRB and DOL level.

Alternatively, the case may suggest some key factual distinctions about the particular company in this case. In the Colorado Supreme Court case, the evidence — unlike arguably in other gig-economy cases — was that the referral company did quite a bit more than simply refer. The Supreme Court noted testimony that it assisted cleaners, it trained them, it exercised “quality control,” it even controlled the cleaners’ ability to hire assistants. The Supreme Court held that all of this combined to be “exactly the control and direction” sufficient to convert a company into an employer, in other words, independent contractors into employees.

Another distinction may have been the apparent lack of technology underlying the cleaning company’s business model. As the federal agencies have noted in their gig-economy cases, companies like Uber characterize themselves as, first and foremost, technology companies. They have invested in and run considerable technological platforms to effectuate their referral systems. It is those very technologies that created their business models. The federal agencies noted that running those technologies is, therefore, the business of a gig-economy company, like Uber. In other words, Uber’s real business is running that technology, not driving. Thuse the company and its service providers are, those agencies have said, in two different businesses.

One thing is clear, companies in Colorado that use independent contractors should immediately review those classifications with experienced legal counsel. This case reflects a continuingly narrow approach to independent contractor classifications at the state level.

Additionally, it should be noted that the Colorado Supreme Court did not note that this company had written agreements in place. Both Colorado state unemployment laws and workers compensation laws create a rebuttable presumption of independent contractor status if companies have written agreements that meet particular statutory requirements. In addition to reviewing their independent contractor classifications, companies should ensure they consult with legal counsel to develop compliant written independent contractor agreements, so they can at least assert the benefit of such a presumption in these cases.

Source: Colorado Custom Maid v. ICAO, case no. 17SC350 (Colo. 5/28/19).