Lost Unemployment, Labor Complaints, Fear: Inside Colorado’s 1,100 Work Refusal Cases

June 3, 2020
Restaurants Allowed to Reopen Rioja Larimer SquareRestaurants Allowed to Reopen Rioja Larimer SquareHart Van Denburg/CPR News
Bartender John Armstrong is a busy blur at Rioja on Friday, May 29, 2020, after the state eased restrictions during the coronavirus pandemic.

Disputes between workers and employers are mounting as Colorado’s businesses reopen. Hundreds of reports of workers refusing to return to jobs have poured into the state labor department in the weeks since Gov. Jared Polis lifted stay-at-home restrictions.

In some cases, workers have lost their unemployment benefits, throwing them into a brutal job market. In at least one case, it’s turned into a labor legal battle. And big questions loom over it all: What’s safe? Who should have to go back to work? Who is enforcing the rules?

Here’s what you need to know.

Can workers lose unemployment if they refuse to return to work?

It’s possible. If someone on unemployment refuses a job, the worker is legally required to report it to the state. The labor department has also encouraged employers to report the refusals, including through an online form.

The department has reviewed about 1,100 such reports during the pandemic, mostly from employers. If they find that a worker refused a “suitable” job, longstanding state law requires that they revoke the person’s unemployment benefits.

So far, 179 of those workers have lost their financial support as a result.

“Everyone's being forced to choose between their livelihoods and their health,” said Jake Lyon, 23, who recently lost his job after refusing to return to Ku Cha House of Tea in Fort Collins. He’s among the first workers in Colorado to lose access to unemployment benefits due to a COVID-19 dispute.

Management called him and the rest of the staff back to the shop early in May. The staffers objected. Several others were immunocompromised or lived with vulnerable people, and they worried the shop was too small to operate with safe distancing, according to Lyon.

“Two days before this, Walmart in Aurora had shut down because too many employees were dying,” Lyon said.

(Three people affiliated with the Walmart store died, according to The Aurora Sentinel.)

The workers at the tea shop said they were unanimously refusing to work. In an email, the workers asked “to be furloughed if possible” so that they wouldn’t lose their unemployment benefits. They were unhappy with a lack of communications and plans, Lyon said, especially for the at-risk workers.

The company agreed to an eight-day delay in reopening, but it eventually fired the six reluctant workers and reported them to the labor department.

“We respect them. We definitely treat them very well. We understand their concerns and we postponed our opening more than a week to get ready,” said Qin Liu, the owner of the Boulder-based chain.

He couldn’t legally furlough the workers because he was replacing them, not reducing his workforce, he said. He is operating the shop with reduced hours and a maximum of seven occupants, below the limit set by health authorities, he said. And workers never told him individually of health complaints, he said.

“We were very disheartened by how they treated us, to be honest. We still understand and respect, because this is an unprecedented environment,” Liu said.

Within a week, employee Lyon got an email from a CDLE deputy about the situation. He responded with his story, but he was told that Liu claimed to be complying with safety measures. Days later, Lyon learned that he was losing his benefits.

“For some reason, I am the only one,” Lyon said. Four other workers were allowed to keep their benefits, while a fifth was in review. He plans to appeal the finding.

“The only thing I can tell is that it was left up to one person’s discretion, and they came to a different conclusion than the other deputies,” he said. “It’s obviously a messy process.”

Lyon is still looking for work a month later. The workers also are pursuing a National Labor Relations Board charge against the business, alleging that Liu retaliated against the workers for “taking collective action regarding their COVID-19-related health and safety concerns,” according to a letter from the law group Towards Justice.

If they win, the business could be required to offer reinstatement and back pay, according to Towards Justice.

These kinds of disputes have become far more common.

The state has received more than twice as many refusal reports during the pandemic as it did in the entirety of 2019. And the labor department is more likely to rule against those workers right now: About 16 percent of reported workers have lost their benefits after reviews during the pandemic, compared to about 3 percent last year.

That’s because the pandemic cases are different than normal refusals, according to Cher Roybal Haavind, deputy executive director of the Colorado Department of Labor and Employment.

“COVID-19 has created more fear based on return to work that may be, in some cases, unfounded,” she wrote in an email. “... The largest group of refusals resulting in denials involve individuals expressing a fear of COVID-19 who are not in a vulnerable group or residing with a vulnerable group and have employers taking reasonable steps to reduce exposure to COVID-19.”

Some workers feel they’re taking a gamble, either way, as they consider returning to work.

“I’m pretty sure I should be OK to get accepted (to unemployment), just because I have so much proof of what they were doing there,” said Alayna Rose Tamez, an assistant at a child care facility.

“But it’s still kind of stressful. What if I don’t, though? What if the state is trying to keep people off unemployment?”

Courtesy of Lindsay Michelle Photography
Alayna Rose Tamez quit her job over safety concerns and is waiting to find out what happens.

Tamez, 25, left her job about two weeks after she was called back. She said she felt unsafe because most staffers weren’t wearing masks, among other reasons. She declined to name the business for fear of legal repercussions.

“Yeah, I might be fine, I might catch it and only have it for two weeks,” she said. “Or I might be like my friends who have caught it and be out of service for two months.” She was waiting to hear about her re-application to unemployment.

Daniel Garcia, 32, faced a similar dilemma when he refused to return to work at Lake Dillon Liquors. His chief complaint: There was no bathroom. Employees could previously use the restroom in another business at the shopping center, but they lost access during the pandemic, according to the store’s owner, Kevin Clary.

Clary said he was doing his best. “It’s as good as I can do. I’ve got Clorox wipes, I’ve got hand sanitizer,” the business owner said.

Garcia worried that wouldn’t be enough. And he resented having to relieve himself outside when he didn’t have time to run home, he said. Federal regulations require that employers provide “sanitary and immediately-available toilet facilities.”

“I feel disgusting that I had to do that, and feel a little bit shameful that I had to do that,” he said. When Garcia refused to return, neither worker nor boss was sure what would happen.

“I don’t think you get to walk away from a job. We’ll see,” Clary said. “It may slip through the cracks.”

Garcia’s unemployment status briefly changed to “pending.” But the benefits continued to roll in like normal, and it appears the decision went in his favor. He never heard from the state about the refusal.

How does the state decide who loses benefits?

When they receive a job refusal report, state officials are asking one central question: Did the person reject a “suitable” job offer? But that word has new meaning in the pandemic.

Under its pandemic rules, the state is considering:

  • How the wages and responsibilities compare to the previous role
  • The “objective level of risk to the health or safety of the individual” posed by the workplace. The higher the risk, the more likely you are to keep benefits.
  • The “level of risk” that would “normally be present within the industry.” If you work in an inherently risky sector, you could be more likely to lose benefits.
  • The “particular vulnerability of the individual to the COVID-19 virus.” People at higher risk are more likely to keep their benefits.
  • The vulnerability of other people who live with the worker. If you live with an at-risk person, you are more likely to keep collecting benefits if you refuse to return to work.

A team of eight staffers at the Colorado Department of Labor and Employment makes the decisions. They don’t hold hearings, and they don’t inspect workplaces. Instead, they review documents from the employer and the worker, including photos.

In some cases, a person disqualified from regular unemployment could still get comparable help from the federal Pandemic Unemployment Assistance program — for example, if they quit to care for a child who is stuck at home.

Is anyone inspecting workplaces or enforcing COVID-19 rules?

Yes and no.

Enforcement of the reopening guidelines is largely falling to local health departments, according to Theresa Anselmo, executive director of the Colorado Association of Local Public Health Officials.

But health agencies have few resources to investigate these cases, Anselmo said. They’re largely responding to complaints only, and even then they’re stretched thin.

“Local public health agencies are the primary responders to those types of issues,” she said. “The challenge becomes, we have had a significant disinvestment in the public health system over the last couple of decades. We were on a really thin margin to begin with, and then you dd something like COVID on top of that … and it just becomes very, very difficult.”

Workplace concerns can also be reported to the governor’s office. But in many cases, these kinds of disputes over workplace safety may be up to workers, bosses and the unemployment system to settle.