Note: This is an edited excerpt from an article written by Adam L. Schorr that appeared in the Vol. 42, No. 3 issue of Labor and Employment Law Quarterly, a publication of the New Jersey State Bar Association. To read the full article and issue, click here (login required).
Even in the best of times, unemployment claimants can find the unemployment process complicated, confusing, long and difficult.
And this is not the best of times.
The COVID-19 pandemic has exacerbated existing problems and created significant new problems from start to finish in the unemployment process. These problems go beyond mere delays, which could have been expected given the challenges imposed by the pandemic.
Here are just a couple of issues that claimants find themselves facing during this pandemic.
The New “Black Hole”
The original unemployment “black hole” applied to claimants who quit one job for another and then did not start the second job through no fault of their own. Claimants were disqualified from benefits due to voluntarily quitting their first job, and changing jobs was not considered good cause. That Black Hole has been amended so that claimants in that situation are not disqualified as long as they were supposed to start the second job within seven days of the first job and the second job was for the same or more money and the same or more hours.
However, there is no protection for claimants who quit their jobs in early 2020 intending to take only a brief period of time away from work but found themselves unable to rejoin the workforce because the COVID-19 pandemic eliminated so many jobs. The Department of Labor has consistently disqualified claimants for voluntarily leaving work without good cause in these cases, and claimants in this situation must work eight weeks and earn 10 times their weekly benefit rate to become eligible for unemployment benefits again. Unfortunately, this has left many claimants unable to collect benefits through nothing more than bad timing.
A second subset of claimants began working after voluntarily leaving their previous employment but failed to meet the eight weeks/10 times requirement. Under current federal guidance, these claimants should be found eligible. The Department of Labor has typically been finding these claimants eligible for Pandemic Unemployment Assistance benefits.
Finally, there is the category of claimants caught in between, who accepted offers at new jobs, quit their previous jobs, and the new jobs failed to begin due to the COVID-19 pandemic. This is the situation contemplated in McClain v. Board of Review. This recent New Jersey Supreme Court case found that, as long as a claimant had a job offer that met the criteria of N.J.S.A. 43:21-5, a claimant is still eligible for benefits if that job offer is revoked through no fault of the claimant.
Fear of the Virus
A large and growing subset of claimants have been disqualified for benefits because they quit their job in March and April 2020 due to fear of catching the virus. Some of these claimants quit because they had an underlying medical condition or lived with somebody who did. Some of these claimants were concerned that their employer did not provide proper protection and equipment during the early weeks when such equipment was not readily available. Some did not feel comfortable or safe being around people after the governor’s orders, even if they worked in a business that was not shut down.
The CARES Act does not provide benefits for those who quit their jobs or requested leave as a result of being scared of catching the virus. Many of these claimants have been disqualified for benefits. There are two primary ways for these claimants to establish eligibility.
First, claimants who, prior to quitting, had doctors advise that they should quarantine because their ages or underlying medical conditions put them at increased risk of the virus are eligible for benefits. However, the claimant must present a doctor’s note to the Department of Labor stating that the claimant is or was advised to quarantine. The Department of Labor is not accepting verbal testimony of claimants to establish this eligibility.
A claimant who did not get a contemporaneous doctor’s note should get a current one from the doctor establishing when the claimant visited and that the claimant has been advised to quarantine since that time. If a claimant quit because the claimant was living with somebody who was advised to quarantine, the claimant should present medical documentation regarding that person’s need to quarantine. This approach is not always successful depending on the surrounding circumstances, but it provides a better chance of success than proceeding without any doctor’s note.
Second, a claimant who, prior to quitting, complained to the employer that the employer was not taking appropriate steps to provide a safe work environment may be eligible for benefits if the employer took no steps to remedy the unsafe condition(s). This situation is covered under regular unemployment law, not PUA, as a claimant always has good cause to quit when an employer fails to provide a safe work environment. Putting complaints in writing is highly recommended, and complaints to outside agencies such as OSHA can significantly increase the chance of success. The claimant must also give the employer a reasonable opportunity to remedy the unsafe condition(s).
The Department of Labor has posted all scenarios in which claimants may be eligible for benefits related to the COVID-19 pandemic. Quitting and failing to meet one of the allowed criteria will result in disqualification. Fear of the virus is not an allowed criteria.