Yesterday, on June 28, 2021, the Board provided updated guidance on the labor market attachment issue. In its announcement, the Board acknowledged the expiration of Executive Order 202, which declared the COVID-19 State of Emergency in New York, and announced that it would permit carriers, employers, and other payers to raise the issue of Labor Market Attachment beginning on August 16, 2021.
The Board does not explain its reasoning for delaying the ability of carriers to raise the labor market attachment issue for another seven weeks. We assume that the delay is designed to place claimants on notice of the return of the labor market attachment defense so that they have an opportunity begin a job search or engage in other labor market attachment activities before August 16th.
We note again, as we did last week, that the Board no longer has any legal basis to suspend the well-established requirement for partially disabled claimants to demonstrate labor market attachment. That said, we fully expect that Law Judges throughout the State will abide by the Board’s August 16th directive and not allow carriers to raise the labor market attachment defense before that date. Accordingly, carriers and employers will need to decide whether it is cost effective to pursue the issue before August 16th given the likelihood of an unsuccessful outcome before the Law Judge, necessitating an appeal to a Board Panel, who will likely affirm the Law Judge.
The Board also notes that claimants “will be required” to demonstrate labor market attachment efforts that are “appropriate given the confines of the remaining restrictions of the State of Emergency.” The announcement also notes that a claimant may not refuse employment solely because it requires in-person attendance at work, so long as the employer is “in compliance with all Executive Orders governing business operations in the state.” Finally, the Board’s announcement allows Law Judges to “take into account the special circumstances each claimant faces” in determining issues relating to labor market attachment cases.
These additional elements may complicate labor market attachment cases with development of the record on issues concerning any COVID-19 restrictions in place at the time of the claimant’s job search, whether the businesses the claimant applied to were in compliance with all Executive Orders, and the broad “special circumstances” of each claimant.
Please do not hesitate to contact any of our attorneys for assistance with this issue.