All of us are facing the uncertainty and burdens of dealing with COVID-19’s impact on the workplace. One issue revolves around when employees have good cause to abandon their jobs because of the risks created by the virus. The Arkansas Court of Appeals recently addressed the question and sided with the employee.
Tracy Keener was a seven-year employee of car dealership Wood Motor Company (WMC). In March 2020, she developed concerns about the COVID-19 pandemic. She had frequent, if not daily, contact with individuals who were at greater risk of harm from the disease, including her son (who is missing a kidney) and her husband’s elderly parents. She also was troubled by WMC’s failure to take any precautions to limit or protect employees and customers from the risk of exposure to the deadly virus.
Keener approached Chip Johnson, WMC’s president and general manager, to express her concerns about the pandemic, her work environment, and the potential impact on her family. She asked to be allowed to work from home. None of the evidence was disputed by the employer.
Keener said WMC told her to use up her accrued vacation days and then take unpaid leave until the federal stimulus package allowed for her to be paid. Despite the assurances, she claimed the employer canceled her health insurance and discharged her with no notice. In fact, she said she was unaware of the discharge and continued to work until two weeks later, when she was told to turn in her keys and collect her last commission check.
WMC, on the other hand, denied telling Keener she could take unpaid leave once her vacation time had been expended. When she didn’t return to work, she was deemed to have quit. The employer claimed she hadn’t been responsive to coworkers’ requests for help and was able to access the company’s computers only because they had forgotten to change the access codes.
The Arkansas Board of Review denied Keener’s claim for benefits because she was disqualified for having left her job voluntarily and without good cause connected with the work. While she had made reasonable efforts to preserve her job rights before quitting by requesting time off to guard against the coronavirus, she had failed to establish she had good cause for quitting. The board noted she hadn’t presented any evidence to show anyone with the employer had tested positive for the virus, thus heightening her fear of exposure. Keener appealed.
Appellate Court’s Decision
Keener represented herself during the appeal. She didn’t provide any brief or other arguments, so the court looked solely to the record before the board and its findings. Nevertheless, the court ruled in her favor and reversed the denial of benefits.
Standard on appeal: Would average worker have left? The court noted Keener would be disqualified from receiving unemployment benefits if she “voluntarily and without good cause connected with the work” left her last job. “Good cause” has been defined as a reason that would cause an average able-bodied, qualified worker to give up her employment.
Family members’ vulnerability is valid reason to leave. The court found the board’s conclusion Keener hadn’t established good cause for leaving work wasn’t supported by substantial evidence:
- It was undisputed Keener had significant and frequent contact with persons particularly vulnerable to contracting COVID-19, a highly contagious and potentially deadly virus.
- It also was unrebutted WMC had failed to implement any procedures or take any steps to limit employees’ exposure to the virus from customers and coworkers.
Based on the evidence, the court found there was “an actual and valid risk” Keener’s employment could potentially expose her family to a deadly virus. Her failure to present evidence of a positive test at WMC didn’t matter. The validity of her concern wasn’t dependent on actual exposure but rather on the risk of exposure.
Given the vulnerability of Keener’s family and the lack of precautions taken by WMC, her reaction wasn’t unreasonable. As a result, the court couldn’t say an average able-bodied, qualified worker wouldn’t have given up her employment under the particular circumstances.
Bottom Line
Keener’s case is a cautionary tale for employers. Now isn’t the time to appear unmoved by employees’ COVID-19 concerns. The level of virus fears among individuals varies widely, as does the apparent risk caused by contracting the disease.
The court was clearly sympathetic Keener’s fears heightened by the vulnerability of family members living in her home. The outcome might have been different if WMC had taken steps to protect employees and customers by requiring masks and social distancing to minimize exposure. On the record, however, none of that occurred.
Finally, allowing unpaid leave might not have been overly burdensome. In any event, WMC’s apparent callousness in response to Keener’s fears wasn’t helpful to its position.
Steve Jones is an attorney with Jack Nelson Jones, P.A., in Little Rock, Arkansas. You can reach him at sjones@jacknelsonjones.com.
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