The recent decision by the federal government to pay an additional $600 in weekly Federal Pandemic Unemployment Compensation (“FPUC”) benefits has created a situation where employees earning less than $20 an hour generally make more money staying at home and binge-watching Netflix. Employers that rely on these employees are justifiably concerned that many employees will resign employment claiming a COVID-19 reason and seek to collect unemployment. Addressing this issue at her press conference on April 10, 2020, Governor Gina Raimondo said the State will investigate claims where employees resign for COVID 19 reasons and that the Department of Labor and Training (“DLT”) will review and evaluate resignation claims on a “case by case” basis.

Governor Raimondo's recent statements provide clear guidance as to how the Department of Labor and Training will deal with this issue. Typically, in order to establish “good cause” to leave employment and collect unemployment, an employee bore the burden of showing the DLT that work had become unsuitable or that the employee was faced with a situation that left the employee no other reasonable alternative but to resign. Before COVID-19, employees would struggle to show “good cause” to collect unemployment for voluntarily leaving their job. Given that Governor Raimondo provided that the DLT will investigate and deny claims where employees resign their employment for COVID-19 when work was available, employers must be prepared to respond to resignation claims and challenge claims. The following are the most likely COVID-19 related resignation claims:

Childcare
While a lack of childcare has been found to constitute “good cause” to leave employment, the DLT has required an employee to show a good faith effort to find suitable childcare that allowed them to continue in their employment. The DLT would ask whether the employee sought leave or an alternative schedule from the employer that would allow them to continue in employment. For employer’s responding to a COVID-19 resignation because of childcare, the employer should (1) work with the employee by offering an alternative schedule and telework if available, (2) ask the employee if they have looked at finding childcare from sources like care.com or from any relatives who could assist, and (3) inform the employee that they will immediately qualify for four weeks of TCI from the State of Rhode Island as an alternative to resigning. The employer can then submit a response to the DLT’s Employee Separation Report that informs the DLT that the employer made all efforts to keep the employee on payroll.

Fear of Contacting COVID-19
The DLT has never had to address an issue as complex as whether an otherwise healthy employee should be allowed to collect unemployment because they “fear” that they will contract a potentially deadly virus. Given that the DLT and the State of Rhode Island liberally construe unemployment laws, the concern had been that the DLT would find this situation to constitute “good cause” to leave employment. Governor Raimondo stated that the DLT would take a pro-employer position and said, “[i]f your business is open, it’s because it’s an essential business. Please do not quit your job because you think it will be easy to get unemployment benefits, because it isn’t.”

For a “fear” resignation claim, employers must be able to inform the DLT that the employer (1) complied with all State and CDC recommendations about COVID-19, (2) offered face masks to its employees along with other safety measures, (3) offered telework if possible, (4) had no reported COVID-19 cases in their workplace, (5) if the employer had a COVID-19 positive case in the workplace, then the employer quarantined anyone who worked with the COVID-19 positive employee and the employer’s workplace was cleaned, and (6) offered alternative schedules, if available, to limit contact between employees. Again, the employer must be able to show the DLT that it did everything it could to ensure compliance and provided its employees with a safe workplace. This may allow the employer to defeat a “fear” based unemployment claim.

Resignation because of Concern about Undocumented Medical Condition
To establish good cause for leaving employment for a medical reason, the DLT would require that an employee provide some medical documentation. Typically, employers would address this issue when an employee could not return from a medical leave and would have to resign their employment. The employee would then submit for unemployment when they felt they were able to return to work. If the employee had previously taken a medical leave and had provided the employer with a doctor’s note, the DLT would typically allow employees to collect unemployment and establish “good cause.”

With COVID-19, employees are citing to undocumented medical reasons as a reason to unilaterally abandon their employment. For instance, an employee may say they have asthma and are “at-risk” but have not been treated for that condition since childhood and could not provide the employer with a doctor’s note given the lapse in treatment. To defend against this claim, an employer must be able to inform the DLT that the employee did not provide any medical documentation stating that the employee was “at-risk” before resigning and also provide the DLT with the information required to defend against a “fear” based claim.

Further Guidance
In many of these cases, the employee will simply “call out” and never return to work. The employer must inform the DLT about this fact because it shows the employee did not want to work and nothing was said about COVID-19. The DLT has stated that it will waive “availability” requirements for employees who are laid off for COVID-19 reasons. Employers must state to the DLT that the employee was not laid off because of COVID-19 but resigned their employment despite the employer making every effort to keep the employee on the payroll.

The employer should inform the employee that they have no right to reinstatement if they resign their employment and will have to pay for their own health insurance. Explain that COBRA will likely exhaust the $600/week payment.

The federal government has provided guidance regarding FPUC to the states including reference to resignation claims. The guidance provided that, “quitting work without good cause to obtain additional benefits under the regular UI program or the CARES Act qualifies as fraud.” This sent a message to the states that they must investigate and disqualify applicants who wrongly bring claims to take advantage of FPUC.

The Take Away – As of April, 10, 2020, many laid-off employees had not received their unemployment payments even though they had been terminated in mid-March. The DLT experienced a bottle neck in processing the record-breaking amount of unemployment applications. This likely kept some employees on staff. Your employees learned from colleagues, friends and family members that the State was slow to pay unemployment and the $600/week payment had been promised but not paid. That changes shortly because the State has indicated it received funding for FPUC and plans to pay FPUC starting during the week of April 13th. Given Governor Raimondo’s statements, the DLT will investigate and disqualify employees who resign their employment to take advantage of FPUC. Employers must be prepared to address an increase in attempted COVID-19 resignations and provide the DLT with information that shows the resignation was sham to collect FPUC.

Pannone Lopes Devereaux & O’Gara LLC employment attorneys will continue to update employers about COVID-19 related issues that impact their organizations and workforce. If you have questions, please contact PLDO Partner Matthew C. Reeber at 401-824-5105 or mreeber@pldolaw.com or PLDO Principal William E. O’Gara at 401-824-5117 or wogara@pldolaw.com. For more information and resource materials about the COVID-19 pandemic, visit PLDO COVID-19 Resources and sign up to receive our e-newsletters, alerts and advisories here.


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