Addressing unemployment claims during the COVID-19 pandemic
As the coronavirus pandemic continues to terrorize the nation, many employers have been forced to confront a very bleak and grim reality: They cannot afford to continue paying and, thus employing, many of their employees. Consequently, since the coronavirus pandemic grabbed hold in mid-March, there have been a record number of furloughs and/or layoffs, with no industry having been spared. Unfortunately, as the adage goes, "misery loves company," with a record number of layoffs comes a record number of individuals applying for unemployment benefits. So, in addition to dealing with coronavirus related issues in the workplace, employers must now address the influx of claims for unemployment benefits filed by their former employees. Suffice it say, this is no simple task. Here are some helpful tips for businesses grappling with this issue.
If you have made a bona fide offer of re-employment (i.e., same or similar job, pay, benefits, etc.) and/or attempted to recall an employee who is currently collecting unemployment benefits, and that employee refuses, for example, because he or she is earning more on unemployment or simply does not want to return to work for no justifiable reason, that employee is likely not eligible to continue collecting unemployment benefits. Following the employee's refusal, notify the Illinois Department of Employment Security and complete the "Refusal of Work Reporting Form" found on IDES' website. IDES will then make a determination as to the employee's continued eligibility.
Is an employee who leaves work because his child's school is closed, and believes he must be home with the child, eligible for unemployment?
Likely, no. In Illinois, an individual who leaves work voluntarily without a good reason attributable to the employer is generally disqualified from receiving unemployment benefits. The reason the individual in this situation left work generally would not be considered attributable to the employer.
So, employers should protest the claim on the basis that the employee voluntarily resigned from his position for a reason not attributable to the employer.
An employee quits his job because he is concerned about COVID-19 related issues in the workplace. Is the employee eligible for unemployment benefits?
Possibly, depending on the legitimacy of the reason provided. Notwithstanding, if you are meticulously adhering to all local, state and federal guidelines (e.g., CDC, OSHA, Illinois Department of Public Health), make sure to protest that claim and rebut the presumption of an unsafe workplace with all the safety protocols and procedures you have implemented in the workplace.
Know too, an individual generally has a duty to make a reasonable effort to work with his employer to resolve whatever issues have caused the individual to consider quitting, prior to quitting.
Failure to do so generally renders the individual ineligible for unemployment benefits.
If an individual is receiving paid leave under the Emergency Paid Sick Leave Act and/or the Emergency Family Medical Leave Expansion Act for a COVID-19 related reason (e.g., mandated quarantine, or child's school/day care is closed), that employee cannot double dip and simultaneously receive paid leave and unemployment benefits.
If an individual on his own chooses to self-quarantine, but not due to a directive from a health care provider and/or his employer, that employee likely would be ineligible for unemployment benefits because he is not able and available to work and the reason for the temporary unemployment is not attributable to the employer. So, protest accordingly.
Finally, upon any separation of employment longer than seven days, know that employers are required to provide the employee with a pamphlet from the IDES entitled, "What Every Worker Should Know About Unemployment Insurance," which can be found on the IDES' website.
• Scott Cruz is a labor and employment attorney and officer at Greensfelder, Hemker & Gale, P.C., in Chicago.