Demarco v. Comm'r of Labor

211 A.D.3d 1279

180 N.Y.S.3d 344

In the Matter of the Claim of Arnold DEMARCO Jr., Appellant.

v.COMMISSIONER OF LABOR, Respondent.

534624

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 10, 2022

Decided and Entered: December 15, 2022

John A. Cimino, Albany, for appellant.

Letitia James, Attorney General, New York City (Mary Hughes of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 21, 2021, which ruled, among other things, that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

As a result of the COVID–19 pandemic, claimant's employer reduced its in-office workforce in March 2020 and instructed those working in claimant's department to work from home. That same month, claimant was granted a 30–day pandemic sick leave based upon his heightened risk of contracting COVID–19. After adopting various safety measures, the employer informed claimant and his coworkers that they would need to return to the office beginning August 3, 2020. Instead of returning to the office, claimant opted to take advantage of a retirement incentive offered by the employer and retired effective August 17, 2020. Claimant's subsequent application for unemployment insurance benefits was denied upon the ground that he voluntarily left his employment without good cause. Following a hearing, the Administrative Law Judge overruled the initial determination, finding that claimant's voluntary separation from employment was with good cause. The employer appealed to the Unemployment Insurance Appeal Board, which reversed the decision and determined that claimant was disqualified from receiving benefits. Claimant appeals.

"Whether a claimant has voluntarily left his or her employment without good cause is a factual issue for the Board to resolve and its decision will be upheld if supported by substantial evidence" ( Matter of Frederick [Commissioner of Labor], 197 A.D.3d 1456, 1457, 153 N.Y.S.3d 698 [3d Dept. 2021] [internal quotation marks and citations omitted]; see Matter of Trezza [Commissioner of Labor], 197 A.D.3d 1460, 1460, 153 N.Y.S.3d 694 [3d Dept. 2021] ). "Objections to the environmental conditions in the workplace will not constitute good cause for leaving employment unless the claimant can show reasonable grounds for the perception that his or her personal safety or health would be endangered thereby" ( Matter of Trezza [Commissioner of Labor], 197 A.D.3d at 1460–1461, 153 N.Y.S.3d 694 [internal quotation marks, brackets and citations omitted]).

Initially, we note that claimant contends that high-efficiency particulate air filters were necessary to ensure a safe workplace. He made this assertion and request repeatedly, including at several points during his testimony at the hearing. In response, the employer's representative identified other workplace safety initiatives that had been undertaken, but failed to address this concern; there was some indication in the record that an order for such filters had been placed, but no showing that they had been received or installed at the time the employees were required to return. There was no scientific evidence...