The Journal Gazette
Tuesday, May 12, 2020 1:00 am

State underplays risks of return

Right to refuse perilous conditions well-established

Fran Quigley

Gov. Eric Holcomb and his senior leadership team recently warned unemployed Hoosiers that they must return to their jobs or risk losing access to unemployment benefits, even if they believe going back to their workplace is unsafe. Those warnings misstate Indiana and federal law and could put thousands of Hoosiers at risk of sickness and even death.

“Claimants who have been placed on a temporary layoff related to COVID-19 must return to work if called back to remain eligible for benefits,” Indiana Department of Workforce Development commissioner Fred Payne said during one of the governor's daily news conferences.

“Getting the economy back on track is of paramount importance,” Holcomb said, adding that the state “can look into” getting involved if workers fear for their safety.

Yet the governor followed that vague promise by emphasizing that Indiana's economic recovery “requires every single Hoosier who has the ability to work to do so.”

As a matter of law, these statements are overbroad and misleading. As a matter of public safety, they are reckless.

These inaccurate warnings by our state's leaders may cause some Hoosier families to lose access to desperately needed benefits. Worse, they could cause Hoosiers to be exposed to unacceptable risks of infection for themselves, their loved ones and the community at large.

Indiana law is clear that unemployed workers are not required to accept offers of employment or reemployment if conditions are not “suitable.” The law says a job is not suitable if it includes unacceptable risk to health and safety. Federal law, too, is clear that workers are not required to appear or remain at a workplace that poses a serious risk to health.

Determining whether a work offer is suitable and whether a workplace is dangerous are complicated, fact-sensitive legal judgments. Decades of statutes and court decisions dictate that these judgments be made on a case-by-case basis, not in news conference pronouncements by politicians.

What about a Hoosier with a high risk of deadly COVID-19 complications, or their neighbor whose job is at a plant with close-quarters working conditions? Neither the governor nor his team are qualified to pronounce that these people will lose their unemployment benefits if they do not believe it is safe yet to return to the workplace.

From a public health perspective, these warnings are ill-advised policy at a time when still-lacking testing and rising infection rates mean that social distancing in Indiana is still a top priority. Keeping as many workers as possible out of dangerous, virus-spreading settings is one of the most important justifications for our current system of extended unemployment benefits.

Hoosiers who fear that returning to work endangers them or others have rights protected under the law, rights that free legal services agencies can help them enforce. That is the message Holcomb and his team should be delivering, not an ominous warning that could trigger widespread sickness and an extension of the pandemic.

Fran Quigley is director of the Health and Human Rights Clinic at Indiana University McKinney School of Law.

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