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Bara v. Industrial Claim Appeals Office.

2023 COA 19. No. 22CA0984. Colorado Employment Security Act—Unemployment Benefits—Disqualification—Violation of a Company Rule—COVID-19.Colorado Employment Security Act—Unemployment Benefits—Disqualification—Violation of a Company Rule—COVID-19.

February 23, 2023

Bara worked as an office manager for Mental Health CTR of Boulder County, Inc. (MHC). In September 2021, responding to the COVID-19 pandemic, MHC mandated that all employees either receive a COVID-19 vaccination or submit a request for a medical or religious exemption by an identified deadline (vaccine rule). Bara declined to receive the COVID-19 vaccine and neither sought nor was granted an exemption, so MHC terminated her employment. Bara then applied for unemployment benefits. A Division of Unemployment Insurance (Division) deputy disqualified Bara from unemployment benefits under CRS § 8-73-108(5)(e)(VII), but a Division hearing officer reversed. An Industrial Claim Appeals Office Panel (Panel) concluded that Bara’s failure to follow the vaccine rule could have resulted in serious damage to MHC’s interests, thus disqualifying her from unemployment benefits under CRS § 8-73-108(5)(e)(VII). The Panel also concluded that Bara was disqualified under CRS § 8-73-108(5)(e)(VI), for deliberate disobedience of an employer’s reasonable instruction, and it found that her failure to comply with the vaccine rule was under her control and not an objectively reasonable decision.

On appeal, Bara argued that the Panel improperly substituted its conclusions of law and its interpretation of facts for the hearing officer’s and thus erred. CRS § 8-73-108(5)(e)(VII) disqualifies a person from receiving unemployment benefits if the employment separation was due to that person’s volitional violation of a company rule and resulted or could have resulted in serious damage to the employer’s property or interests, or could have endangered the life of the worker or other persons. Here, the undisputed evidence at the unemployment benefits hearing showed that Bara’s separation from employment was based on her volitional violation of a company rule that could result in serious damage to MHC’s interests. Accordingly, the hearing officer’s findings that MHC offered no reasonable alternatives to vaccination and that Bara was not at fault for her separation were mistaken. Therefore, the Panel correctly determined that Bara was disqualified from unemployment benefits under CRS § 8-73-108(5)(e)(VII). Based on this conclusion, the court of appeals did not address the Panel’s conclusion that Bara was also disqualified under CRS § 8-73-108(5)(e)(VI).

Bara also argued that it wasn’t reasonable for MHC to apply the vaccine rule to remote employees. However, Bara’s office manager position was an in-office rather than a remote position. MHC’s accommodation to work remotely during the COVID-19 pandemic was temporary, and it adopted the vaccine rule to prepare for employees to return to the office. But even assuming MHC allowed Bara a further extension to remain remote, its vaccine rule was appropriate to accomplish its legitimate business interests because it was implemented to protect the health and safety of MHC’s employees, clients, and partners; to maintain its federal funding; and to better serve its clients.

Lastly, Bara argued that the Panel substituted its views on what is objectively reasonable for those of the hearing officer. Here, the hearing officer based his ruling on Bara’s subjective concerns over her health and safety that purportedly forced her to choose between her job and livelihood over her health and safety. But the hearing officer ignored Bara’s available alternatives and didn’t explain why her failure to seek an exemption based on her medical and religious concerns was objectively reasonable. Further, the hearing officer neither addressed nor acknowledged the serious harm that Bara’s unilateral decision could cause MHC. Accordingly, the Panel didn’t err by considering the totality of the evidence presented.

The order was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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