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‘IMMUNOCOMPROMISED’ WORKER REFUSES TO RETURN TO WORK

QUESTION: I run a small business. We’re planning to bring everyone back to work on June 15 – assuming any new executive order allows it (we were going to start back on June 1). Most of the employees are eager to get back on the job — except for one. This worker says he can’t return to work on June 15, because he has an immunosuppressant disorder. I asked him when he could return, and he said he didn’t know – maybe when the virus was eradicated. Because I need someone in his position, I told him he would be terminated, although he’s welcome to reapply when he feels able. He said I’ve violated his rights under the ADA, and hopes I’ll enjoy paying his unemployment. I don’t think we should have to pay unemployment – he basically quit, and I can’t see how I violated his rights. 

ANSWER: The good news is, if you terminate his employment you won’t be responsible for the employer’s share of unemployment benefits. Under Governor Whitmer’s Executive Order 76, Section 6, benefits paid to claimants who are “laid off or placed on a leave of absence will be charged to the Unemployment Insurance Agency, not the employer. Under the Order, an employee is considered to have left work involuntarily for medical reasons if the individual is under self-isolation or self-quarantine in response to elevated risk from COVID-19 due to being immunocompromised. The order does not state whether the individual who claims benefits for this reason needs to produce a doctor’s note of some kind. 

Basically, being “immunocompromised” means having a weakened immune system. People can be immunocompromised because they have a certain disease – like cancer or diabetes – or because they are taking certain medications or treatment for a disease (chemotherapy, for instance). But the list of conditions that might weaken the immune system is long  — it includes kidney failure, liver failure, cirrhosis of the liver, lupus, rheumatoid arthritis, malnutrition, pregnancy, aging, stress, even tobacco smoking and alcoholism.

Under normal circumstances, you may be required to work with an employee who suffers a disability and needs time off as a “reasonable accommodation” under the Americans with Disabilities Act to perform the job. Assuming that being immunocompromised is a disability under the ADA, you are still not required to hold the position open until whenever. Courts have held that an accommodation that asks an employer to allow leave for an indefinite period is not reasonable.

The Executive Order doesn’t just allow those who are immunocompromised to claim benefits. Workers are considered to have “left work involuntarily for medical reasons” if they displayed at least one of the “principal symptoms” of COVID-19, has had contact within the last 14 days with someone who has been diagnosed with the disease, has to take care of someone who has been diagnosed with COVID-19, or has “a family care responsibility as a result of a government directive” (i.e. has to stay home with the children because schools are closed).

In addition, under the Executive Order, unemployed workers will be eligible for 26 weeks of benefits – instead of the usual 20. But, unemployed workers can potentially receive an additional 13 weeks under the federal Pandemic Emergency Unemployment Compensation Act, part of the federal CARES Act, passed by Congress and signed by President Trump in March. And, as most people already know, the CARES Act authorizes unemployed workers to receive an additional $600 per week in benefits through July 31, 2020.

Individuals who had an active unemployment claim in effect on March 15, 2020 – even if it has nothing to do with the coronavirus and COVID-19 – will receive the additional weeks of unemployment and the additional unemployment compensation.

The House of Representatives recently passed the HEROES Act, which would have extended the additional payments to January 2021, but the bill does not have support of the Senate, where Republicans have a majority, or the White House. The bill would also have provided another round of direct payments to many Americans to help stimulate the economy.

Some senators, and President Trump, have argued that the additional $600 is an incentive for employees to quit their jobs. However, those who quit their jobs without good reason are not eligible for unemployment. And, a worker who refuses to return to work, without good reason, would also be ineligible for unemployment benefits. Both the CARES Act and Michigan law provide substantial penalties for workers who fraudulently collect benefits.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com. 

 

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