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IDES “Voluntary Leave” Unemployment Insurance Issues Including A Look At Leaving Because Of Covid-19 Vaccination Mandate

Illinois employers often believe that if an employee quits, that employee is not eligible for unemployment insurance benefits. While this is generally true, many legal issues can arise that may muddy the waters. Let us look at the unemployment insurance law in Illinois with regard to voluntary leaving.

Under Section 601 of the Illinois Unemployment Insurance Act, an individual is not eligible for unemployment insurance benefits if he or she left work voluntarily (QUIT) without good cause attributable to the employing unit.

The underlying legal issue is usually whether the Illinois employer can prove that the employee has actually “voluntarily quit,” per Section 601 of the Illinois Unemployment Insurance Act.

WHAT IS GOOD CAUSE?: Good cause generally means there is a real and substantial reason that would  compel a reasonable  person (who was genuinely desirous of remaining employed) to leave work, and the employee has made a reasonable effort to resolve the problem prior to quitting. For example, if an employee quits because of a hostile work environment that the employer failed to correct, the employee may qualify for unemployment benefits. Good cause could also be for compelling personal reasons such as domestic violence situations.

WHAT IS ATTRIBUTABLE TO THE EMPLOYER: To be attributable to the Illinois employer, the individual’s reason for leaving work must be within the employer’s control.   Situations in which the reason for leaving is attributable to the employer  include, but are not limited to, situations in which the employing unit has implemented a substantial change in the conditions of employment.

QUIT VS. DISCHARGE: For an individual’s separation from work to be a voluntary leaving, the individual must have the option to remain employed with the Illinois employer.  The separation is a discharge if the individual does not have the option to remain employed.  As discussed below, whether the employee quit or was fired is a common threshold issue at Illinois unemployment insurance hearings.

COMMON THRESHOLD ISSUE AT HEARINGS: A common threshold issue at unemployment insurance hearings can be whether the employee quit or was fired.  Sometimes, an employee blows up in a huff, in overreaction to something that the employer said to him.  The employee runs out of the workplace very upset.  Was that employee fired, or did that employee quit?

At Illinois unemployment insurance hearings where it is unclear whether the employee quit or was fired, the Illinois Department of Employment Security (IDES) Hearing Officer (also called Administrative Law Judge) looks at who caused the separation from employment.  If the employer’s words could reasonably be interpreted that the employer no longer wanted the employee on that company’s workforce, then the Hearing Officer will decide that the employee was fired.

If, on the other hand, the Illinois employer was simply giving constructive criticism and the employee should have checked to see whether the employer wanted that employee to continue working at that company, then the Hearing Officer will decide that the employee has left voluntarily, and the employee will be barred from unemployment insurance benefits.  If the employer has given the employee the choice of remaining at work, then the employee’s leaving is a “voluntary leaving.”

TOOL OF THE TRADE: The IDES finds that when an occupational license (which is a tool of an individual’s trade) is within the individual’s control to obtain and maintain and the individual fails to do so, it is a voluntary leaving by the employee rather than a discharge by the employer. The employee is therefore ineligible for unemployment insurance benefits.

For example, let’s assume the individual’s job requires that he/she maintain a valid driver’s license. After learning that the individual’s driver’s license has been  suspended  because  of  traffic  violations,  the  employer informs  the  individual  that  it  no  longer needs his/her services. This separation would be considered a voluntary leave. The individual failed to maintain a tool of his/her trade, in this case, a valid driver’s license.

EXCEPTIONS UNDER ILLINOIS LAW: Sometimes a worker can qualify for unemployment insurance benefits even if the reason the worker quit was not the fault of the employer. Below are the seven exceptions under Illinois law (Section 601) which can result in the worker being eligible for unemployment insurance benefits even though he/she left work voluntarily without good cause attributable to the employer:

  1. MEDICAL: Because the worker is deemed physically unable to perform his or her work by a licensed and practicing physician, or because the individual’s assistance is necessary for the purpose of caring for his or her spouse, child, or parent who, according to a licensed and practicing physician or as otherwise reasonably verified, is in poor physical or mental health or is a person with a mental or physical disability and the employer is unable to accommodate the individual’s need to provide such assistance. THE EMPLOYER’S ACCOUNT, HOWEVER, SHALL NOT BE CHARGED for any benefits paid out to the individual who leaves work under a circumstance described in this paragraph.
  2. OTHER BONA FIDE WORK: To accept other bona fide work and, after such acceptance, the individual is either not unemployed in each of 2 weeks, or earns remuneration for such work equal to at least twice his or her current weekly benefit amount. THE EMPLOYER’S ACCOUNT, HOWEVER, SHALL NOT BE CHARGED for any benefits paid out to the individual who leaves work under a circumstance described in this paragraph.
  3. IN LIEU OF ACCEPTING TRANSFER: In lieu of accepting a transfer to other work offered to the individual by the employing unit under the terms of a collective bargaining agreement or pursuant to an established employer plan, program, or policy, if the acceptance of such other work by the individual would require the separation from that work of another individual currently performing it;
  4. SEXUAL HARASSMENT: Solely because of the sexual harassment of the individual by another employee. Sexual harassment means (1) unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other conduct or communication which is made a term or condition of the employment or (2) the employee’s submission to or rejection of such conduct or communication which is the basis for decisions affecting employment, or (3) when such conduct or communication has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment and the employer knows or should know of the existence of the harassment and fails to take timely and appropriate action;
  5. UNSUITABLE WORK: Which he or she had accepted after separation from other work, and the work which he or she left voluntarily would be deemed unsuitable under the provisions of Section 603;
  6. DOMESTIC VIOLENCE: Because the individual left work due to verified domestic violence as defined in Section 103 of the Illinois Domestic Violence Act of 1986 where the domestic violence caused the individual to reasonably believe that his or her continued employment would jeopardize his or her safety or the safety of his or her spouse, minor child, or parent if the individual provides the required documentation.
  7. CHANGE IN LOCATION: Because, due to a change in location of employment of the individual’s spouse, the individual left work to accompany his or her spouse to a place from which it is impractical to commute or because the individual left employment to accompany a spouse who has been reassigned from one military assignment to another. THE EMPLOYER’S ACCOUNT, HOWEVER, SHALL NOT BE CHARGED for any benefits paid out to the individual who leaves work under a circumstance described in this paragraph.

CAN ILLINOIS EMPLOYEES WHO VOLUNTARILY QUIT (OR ARE TERMINATED) FOR REFUSING THE COVID-19 VACCINE GET UNEMPLOYMENT INSURANCE? An increasing number of Illinois employers are requiring employees to provide proof of vaccination. There will likely be a big wave of unemployment insurance claims on this issue.

At some point, perhaps the IDES will provide guidance on how the IDES will evaluate a worker’s eligibility for unemployment insurance benefits when the separation was caused because the worker refused to get vaccinated. We checked with a source at the IDES who said that, as of now, these cases will be determined on a case by case basis.

Traditionally, as this article has explained, Illinois employees are not eligible for unemployment insurance benefits if they voluntarily quit without good cause attributable to the employer. A worker is also not eligible for benefits if that individual is “discharged” for misconduct as defined by Section 602 of the Illinois Unemployment Insurance Act.

Opting out of a company policy requiring vaccination could be grounds for disqualification for unemployment insurance benefits based on misconduct, just like failing to adhere to any company safety protocol (such as an employer-mandated drug test). 

A similar analysis might apply to an employee who voluntarily quits in response to a vaccination mandate. While the IDES would ordinarily disqualify an employee who leaves voluntarily without good cause attributable to the employer, the IDES will likely consider whether the employee had a reasonable basis for leaving, such as a disability or religious belief, and any other relevant circumstances.

Lawmakers in several states have proposed legislation that would prohibit state agencies from denying unemployment benefits for employees who refuse to comply with a vaccine mandate.

Practice Tip: Employers who are mandating the COVID-19 vaccine should be able to prove that they had a clear written policy, the employee received the written policy, and the employee refused to comply. This fact pattern may be successful for the employer at an IDES hearing (about whether or not the employee should get unemployment insurance benefits).

As a general practice rule, always obtain signed letters of voluntary resignation from workers who choose to leave. In the absence of a signed letter of resignation, employers should carefully document the resignation details. A witness to the voluntary resignation is tremendously helpful for the employer in its legal case against the employee in IDES Hearings.

If you would like a free copy of the IDES Regulations interpreting Voluntary Leaving under the Illinois Unemployment Insurance Act, please contact Legal Assistant Tammy Nelson at 630-377-1554 or via email at tanelson@wesselssherman.com.

For assistance with employee terminations and protesting unemployment insurance claims, as well as representation at IDES Hearings, contact Attorney Nancy E. Joerg who can be reached at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com. Additionally, contact Nancy for  assistance with IDES audits, hearings, and independent contractor agreements (or for consultations on limiting your liability in the use of independent contractors).

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