Able and available during the pandemic

In late March 2021, the Labor and Industry Review Commission released Lewis v. Skogens Foodliner Inc., UI Hearing 20012206MD (26 March 2021), concerning being able and available for work when the pandemic started. The decision is whether a person who was a high-risk, vulnerable individual for severe illness because of Covid-19 remained able and available when she stayed away from work because of the pandemic with the support of her employer and pursuant to the orders of her doctor.

The Commission found that the employee, as a high-risk individual who was not subject to a clear instruction from an employer to return to work, remained able and available for work and so eligible for unemployment benefits.

The reasoning and factual finding is straightforward. But, until this decision appeared, all appeal tribunal decisions on the question of being able and available during the pandemic have denied eligibility.

In part, the difficulty of this issue in appeal tribunal decisions and initial determinations rested on the complex and haphazard history of how Wisconsin responded to the pandemic. To that end, Lewis provides a clear and understandable narrative that connects these responses to unemployment law and regulations and how claimants who are vulnerable to the pandemic acted reasonably when they stayed out of their workplaces (with the support of their employers).

During weeks when the emergency safer-at-home orders were in place, the Commission explains:

Section 7 of the Safer at Home Orders urges elderly people and those who are vulnerable as a result of underlying health conditions to stay home. Order #94 defines “people over 60 years of age” as vulnerable. The employee is 70 years old and suffers from respiratory issues. She is therefore “vulnerable” within the meaning of the Safer at Home Orders.

Emergency Order #7 and DWD Emergency Rule 2006 require the department to consider a claimant available for work if the claimant is quarantined (under Emergency Order #7) or instructed to stay home (under DWD Emergency Rule 2006) under government direction or guidance due to COVID-19 and the employer has not provided clear instruction for the employee to return to work. Such is the case here.

Lewis at 5. And, for the weeks when there was no emergency safer-at-home order, the Commission reasons:

In order to be considered available, a claimant must maintain an attachment to the labor market, be ready to perform full-time suitable work in the labor market, and must not be withdrawn from the labor market due to restrictions on his or her availability for work. A claimant is presumed to be able to work and available for work unless there is evidence that, in the relevant week, the claimant was not able to work or available for work. Wis. Stat. § 108.04(2). In determining whether an employee has withdrawn from the labor market, the commission considers, among other things, whether the claimant has placed “unreasonable restrictions on working conditions.” Wis. Admin.Code § DWD 128.01(2)(7) [should be 128.01(4)(a)(7)].

The employee is a vulnerable individual, as recognized by the Safer at Home Orders. She is at heightened risk for severe complications, should she contract COVID-19. The employee was instructed by her physician not to return to work that requires direct physical contact with the general public, due to her risk of severe illness from COVID-19. The employee remained willing to accept work that does not require that she have direct contact with the general public. The work that she is available to perform does not require special training or experience because she is available for all work with the only limitation being that she cannot work directly with the general public.

The employee has maintained an attachment to the labor market. She is ready and willing to perform full-time suitable work. Under the circumstances, the employee’s restriction on working conditions was not unreasonable.

An employee who is out of work during the COVID-19 public health emergency due to being at high risk of severe illness from COVID-19, but who is willing to accept work that does not put him or her at higher risk of contracting the virus, has not imposed an unreasonable restriction on working conditions, and is available for suitable work.

Lewis at 6 (footnote replaced with statutory reference).

Here is to hoping that the Department and its administrative law judges begin to follow Lewis. Indeed, the Department should re-open prior initial determinations that denied unemployment benefits to claimants who stayed home because of the pandemic. Claimants who have health conditions that made them vulnerable to severe illness because of Covid-19 and who avoided work either with the permission of their employer or because of a medical provider’s order remained able and available for work.

Credit and applause to JSO for handling this case and passing it on to me.

For those who need to look up the various legal documents cited in Lewis.

• Emergency Order #7 (18 March 2020) and in effect until 9 May 2020: amending state unemployment able and available law and requirements in light of the pandemic.
• Emergency Order #12 (24 March 2020) and in effect until 24 April 2020: the state’s first safer-at-home order, which closed numerous businesses, directed how other businesses could remain open, and directed that residents and workers stay at home when possible.
• Emergency Order #28 (16 April 2020) and in effect until 13 May 2020, when struck down in relevant part in Wisconsin Legislature v. Palm, 2020 WI 42: the state’s second safer-at-home order, which closed numerous businesses, directed how other businesses could remain open, and directed that residents and workers stay at home when possible.
• Emergency Rule 2006 (9 May 2020) and in effect until 6 Feb. 2021: amending state able and available law and requirements in light of the pandemic.
• Emergency Rule 2106 (11 Feb. 2021) and in effect until 10 July 2021: amending state able and available law and requirements in light of the pandemic.
• Executive Order #94 (10 Nov. 2020): recommends that vulnerable individuals should avoid Covid-19 health hazards and so continue to stay home.