Moved to a High Covid Risk Job. What Are My Options?

by Evil HR Lady on October 5, 2020

I’ve been out on FMLA helping my elderly parents. Dad had Covid. I recently returned to work. One day last week and 1 day this week. My employer was moving me to another unit, which I haven’t worked on in years. My permanent spot was a dementia unit. I’ve been at my job for 20 years, so I thought I had seniority. Upon returning to work where they’re are Covid patient, I felt very unsafe since I live with my parents, who continue to need my help. My question is, can I collect unemployment? I’ve resigned effective Oct. 3rd as I felt like my parents will be compromised if I continue going there. Thanks for your help in this matter.

It might be a bit late for you, since you resigned, but most likely you won’t be eligible for unemployment, given a resignation. Your state may have different guidelines for Covid related resignations, however, and the advice is always apply for unemployment and appeal if they deny you.

That said, let’s look at another option: FMLA retaliation.

If the job on the Covid unit isn’t as good as the one on the Dementia unit, or they generally assign jobs based on seniority, so you should get first pick and you’re placed in an undesirable position, that might be what we call FMLA retaliation.

When a company (or manager or HR department) punishes you for taking legally protected time off work, that’s illegal, even if it isn’t termination.

The question is, is this move retaliation? It may be and it may not be. Are they struggling to keep the Covid ward staffed? Is it considered undesirable by everyone? Are all the other people doing your job the newbies while the senior people get a chance to pick their location?

Did you ask if you could be moved back to your old unit?

Sometimes, it’s not retaliation–it’s simply a staffing situation. If you’re a nurse, and are qualified to work in 10 different departments, and you get back from FMLA, they just slot you into the first open spot. Done! No one thinks about it as a punishment and if you’d come back a week earlier it would have been someplace different and if you would come back a week later, it would be a third unit. It’s simply the place that needed a nurse. Your pay and schedule don’t change.

To a lot of people that’s neutral.

To you, of course, it’s not. You’re concerned about exposure and your parents’ health. The question is, did you make that clear? Did you talk with your boss and/or the HR department about your new assignment?

Because you’ve already resigned, it might be difficult for you to have this discussion now, but it’s worth a shot. Let them know you want to continue working, but it’s not safe for your family if you work on the Covid unit and ask if there are other options.

Under FMLA, they aren’t required to return you to the exact position you had before, but they are required to provide you with a similarly situated position. If they moved you out of malice, it’s retaliation. If they moved you because that was where they needed you, and it’s considered a similarly situated place, it’s probably not.

The other option would be to ask people if they were willing to switch units with you. People have different work goals and different interests.

So, go back and ask if there’s anything that they can do. If that fails, apply for unemployment, but don’t be surprised if it’s not granted since you resigned.

If you feel like this move was retaliatory in nature, contact an employment attorney.

Have a workplace dilemma? Email me at EvilHRLady@gmail.com

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