Cheryl Pillow v. Director, Department of Workforce Services ( 2024 )

Cite as 2024 Ark. App. 76ARKANSAS COURT OF APPEALS
DIVISION IV
No. E-22-694
Opinion Delivered February 7, 2024
CHERYL PILLOW APPEAL FROM THE ARKANSAS
APPELLANT BOARD OF REVIEW
[NO. 2022-BR-01683]
V.
DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES
APPELLEE AFFIRMED
BRANDON J. HARRISON, Chief Judge
Cheryl Pillow appeals the Board of Review’s order finding that she is a covered
individual within the meaning of section 2102(a)(3) of the CARES Act and therefore
eligible for Pandemic Unemployment Assistance (PUA), but only for the time period of 15
March 2020 to 4 April 2020.1 On appeal, she argues that the Board lacked substantial
evidence to conclude that her eligibility ended in April 2020 because she remained
unavailable for work due to COVID-19. We affirm the Board’s decision.
On 27 January 2020, Pillow began temporary employment as a front-office clerk at
an oral surgeon’s office. Her employment was scheduled to end the first week of April
1
PUA is one of several federal financial-assistance programs created by the federal
government during the COVID-19 pandemic. See Coronavirus Aid, Relief, and Economic
Security (CARES) Act, Pub. L. No. 116-136, 134 Stat. 281 (2020) (codified at 15 U.S.C.
§ 9021 to § 9034).
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2020; however, on March 17, the doctor informed his employees that hours would be
reduced due to the COVID-19 public health emergency, and Pillow was given the option
to quit or continue working reduced hours. She chose to quit due to concerns about
exposing her immune-suppressed husband to COVID-19.
Pillow applied for PUA on 16 July 2020 but was denied on 28 August 2020; the
“Notice of Determination of Entitlement” stated that she was not a covered individual
within the meaning of section 2102(a)(3) of the CARES Act. On 16 June 2021, 2 Pillow
appealed this decision, and the Appeal Tribunal conducted a hearing on 30 June 2022.
Pillow testified that the main reason she left her employment on 17 March 2020 was her
husband’s health condition. She said that her employer had spoken to her about a full-time
position, but no plan had been put in place before she left. She also said that she had
previously worked in similar front-desk positions and would have sought other positions
after this temporary employment ended if not for continuing COVID concerns.
Her husband, Darryl Pillow, testified that he had been diagnosed with Guillain-Barre
syndrome approximately eighteen years ago and had reduced lung function and other nerve
damage as a result of that condition. He stated that he is more susceptible to respiratory
illness and is also a Type 2 diabetic. When the COVID pandemic began, he was advised
by his doctor to exercise extreme caution and limit exposure as much as possible. He and
his family sheltered in place until May or June 2021.
2
The Arkansas Appeal Tribunal found that Pillow’s untimely filing of her appeal was
a result of circumstances beyond her control. Pillow had been advised by the Department
of Workforce Services (DWS) to proceed with her claim for regular unemployment before
further pursuing PUA.
2
At the conclusion of testimony, Pillow’s counsel asserted that DWS had never
considered Pillow’s underlying eligibility for PUA because it had determined (erroneously)
that she was eligible for regular unemployment. Counsel argued that Pillow was eligible
for PUA under three different subsections of section 2102(a)(3): (1) the individual is unable
to reach the place of employment because the individual has been advised by healthcare
provider to self-quarantine due to concerns related to COVID-19, (2) the individual has to
quit his or her job as a direct result of COVID-19, and (3) the individual’s place of
employment is closed as a direct result of the COVID-19 public health emergency. See
CARES Act, Pub. L. No. 116-136, § 2102(a)(3)(A)(ii)(I)(ff), (ii) & (jj).
In its decision, the Appeal Tribunal acknowledged that Pillow had testified that she
quit her job because of her husband’s preexisting health issues, for which her husband, and
by extension other members of his household, were advised by his doctor to quarantine.
However, the Appeal Tribunal also found that Pillow’s employment was temporary and
scheduled to last only until the first week of April 2020. Therefore, it reasoned, Pillow was
a covered individual within the meaning of the CARES Act only for the period in which
she would have otherwise been employed but for COVID-19—specifically, the time period
of 15 March 2020 to 4 April 2020.
Pillow appealed to the Board of Review and stressed that the Appeal Tribunal’s
decision was erroneous because the order to quarantine from Mr. Pillow’s doctor
“prevented Ms. Pillow from extending her employment into a permanent position or
seeking otherwise suitable work after her employment ended in April 2020.” In other
words, Pillow remained unavailable for work due to COVID-19 even after her temporary
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employment was scheduled to end.
In its decision affirming the Appeal Tribunal, the Board explained,
The claimant argues that there was the possibility of her job going from
temporary to permanent. However, there was no evidence that this was a set
agreement. Instead, she was told that hours were going to be reduced due to
the COVID-19 public health emergency so she would have only been
working reduced hours until the first week of April 2020. The Board finds
the claimant’s testimony that she was going to have a permanent job to be
speculative in nature. She does not provide any testimony about substantive
terms of permanent employment. If the employer had provided testimony or
documentation that it was their intent to hire her permanently after the first
week of April, that could have changed the finding. To be eligible for PUA
a claimant must be unemployed for a qualifying reason connected to the
COVID-19 public health emergency. The claimant was facing
unemployment at the end of her temporary period because the temporary job
was completed, not because of the COVID-19 public health emergency.
Therefore, given the facts in this ease, she is not eligible for PUA after that
time period.
The problem is the claimant is trying to use two opposite ideas to be a
covered individual. The claimant argues she cannot work due to the
COVID-19 public health emergency because of her husband’s health status.
She had been told by her husband’s doctor to self-quarantine. That was the
reason she chose to go ahead and quit the temporary job. She cannot at the
same time argue she had a permanent job that she would have continued to
work if she was going to have to quit due to her need to quarantine. To be
a covered individual the claimant must be unemployed due to the COVID-
19 public health emergency. The Board finds that she was not unemployed
after April 4, 2020 due to the COVID-19 public health emergency, but
because the agreed upon term of her temporary position expired.
It is clear the claimant was temporarily unemployed from March 17,
2020 to April 4, 2020 due to her hours being reduced and asked if willing to
resign from her temporary position due to the COVID-19 public health
emergency. She is a covered individual for that time period. However, she
would have been unemployed after April 4, 2020 because it was just a
temporary position and even though there had been talk of making her
position permanent it had not occurred. Therefore, the Appeal Tribunal
decision No. 2022-AT-03306 is affirmed upon finding the claimant is a
covered individual under § 2102(a)(3) of P.L. 116-136 for the time period of
March 17, 2020 to April 4, 2020.
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Pillow has timely appealed the Board’s decision.
We review the Board’s findings in the light most favorable to the prevailing party
and affirm the Board’s decision if it is supported by substantial evidence. McPherson v. Dir.,
2022 Ark. App. 36, 640 S.W.3d 653. Substantial evidence is such relevant evidence that
reasonable minds might accept as adequate to support a conclusion. Id. In appeals of
unemployment-compensation cases, we view the evidence and all reasonable inferences
deducible therefrom in the light most favorable to the Board’s findings. Id. Even if there
is evidence that could support a different decision, our review is limited to whether the
Board could have reasonably reached its decision as a result of the evidence presented. Id.The correct application and interpretation of an Arkansas statute, however, is a
question of law, which this court decides de novo. Martin v. Dir., 2021 Ark. App. 66; see
also Myers v. Yamato Kogyo Co., Ltd., 2020 Ark. 135, 597 S.W.3d 613 (clarifying that agency
interpretations of statutes are reviewed de novo). In considering the meaning and effect of
a statute, we construe it just as it reads, giving the words their ordinary and usually accepted
meaning in common language. Myers, supra. When the language of a statute is plain and
unambiguous and conveys a clear and definite meaning, there is no need to resort to rules
of statutory construction. Martin, supra.
When Pillow applied for PUA, a “covered individual” was defined as an individual
who
(i) is not eligible for regular compensation or extended benefits under
State or Federal law or pandemic emergency unemployment compensation
under section 9025 of this title, including an individual who has exhausted all
rights to regular unemployment or extended benefits under State or Federal
law or pandemic emergency unemployment compensation under section
9025 of this title; and
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(ii) provides self-certification that the individual—
(I) is otherwise able to work and available for work within the meaning
of applicable State law, except the individual is unemployed, partially
unemployed, or unable or unavailable to work because—
(aa) the individual has been diagnosed with COVID-19 or is
experiencing symptoms of COVID-19 and seeking a medical diagnosis;
(bb) a member of the individual’s household has been diagnosed with
COVID-19;
(cc) the individual is providing care for a family member or a member
of the individual’s household who has been diagnosed with COVID-19;
(dd) a child or other person in the household for which the individual
has primary caregiving responsibility is unable to attend school or another
facility that is closed as a direct result of the COVID-19 public health
emergency and such school or facility care is required for the individual to
work;
(ee) the individual is unable to reach the place of employment because
of a quarantine imposed as a direct result of the COVID-19 public health
emergency;
(ff) the individual is unable to reach the place of employment because
the individual has been advised by a health care provider to self-quarantine
due to concerns related to COVID-19;
(gg) the individual was scheduled to commence employment and does
not have a job or is unable to reach the job as a direct result of the COVID-
19 public health emergency;
(hh) the individual has become the breadwinner or major support for
a household because the head of the household has died as a direct result of
COVID-19;
(ii) the individual has to quit his or her job as a direct result of COVID-
19;
(jj) the individual’s place of employment is closed as a direct result of
the COVID-19 public health emergency; or
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(kk) the individual meets any additional criteria established by the
Secretary for unemployment assistance under this section.
15 U.S.C.A. § 9021(a)(3)(A).3
Pillow argues that the only issue is whether she met the condition of subsection (ii);
in other words, whether she self-certified that she was otherwise able to work and available
for work within the meaning of applicable state law, except that she was unemployed,
partially unemployed, or unable or unavailable to work because of one of the COVID-19-
related reasons listed. She asserts that the Board agreed that she qualified for PUA based on
her husband’s doctor’s instructions, but the Board erred in not finding that she continued
to qualify through 2020 and 2021 because she was not cleared to return to work until May
or June 2021.
Pillow elaborates that when she originally applied for PUA in the summer of 2020,
she needed only to self-certify her general eligibility for PUA, not her eligibility for specific
weeks. She asserts that after determining her general eligibility for PUA, DWS was required
to provide her an opportunity to file weekly certifications for PUA benefits. While
acknowledging that there is no indication that she was denied PUA based on her failure to
submit weekly self-certifications, she nevertheless contends that she sufficiently established
her general eligibility for PUA and that DWS erred by denying her specific weeks without
providing her an opportunity to self-certify her eligibility on a week-by-week basis. She
3
Congress later added a third requirement requiring documentation to substantiate
employment or self-employment or the planned commencement of employment or self-
employment.
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argues that DWS’s hold on her PUA account prevented her from filing weekly
recertification claims through which she could self-certify her continued eligibility for PUA.
Finally, Pillow asserts that the Board based its conclusion on an incorrect
interpretation of the CARES Act, specifically requiring her to show that her sole reason for
continued unemployment after her temporary job was related to COVID-19. In other words,
she argues, the Board’s interpretation of the Act required her to show that she would have
otherwise secured employment after April 2020 but for COVID-19. She contends,
however, that she could, and did, establish her eligibility for PUA benefits based instead on
her continued inability or unavailability for work due to COVID-19. Pillow avers that she
became unable or unavailable for work in March 2020 when her husband’s doctor advised
him and anyone living with him to shelter in place. She remained unable or unavailable for
work until around May or June 2021, when Mr. Pillow’s doctor deemed it safe to end the
family’s quarantine.
In response, DWS frames the issue as follows: “Appellant essentially argues that she
was a covered individual for a short period of time and that she should continue to be
allowed benefits based on those circumstances even if such circumstances no longer exist.”
DWS does not dispute that Pillow left her temporary employment before its scheduled end
date due to a COVID-related reason, and she was correctly awarded PUA benefits for the
period between when she left her temporary job and when the job was scheduled to end.
However, DWS argues, Pillow’s eligibility no longer existed after her temporary
employment ended because she could not and did not self-certify an attachment to the
workforce beyond her temporary job. The supposition that she might have gotten a job is
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not sufficient evidence of continuing eligibility.
DWS explains that when looking at the CARES Act, it is clear that a claimant must
have been currently in the workforce and unable to work because of COVID. The
underlying element is that a person is separated from a job due to COVID. Here, Pillow
offered no evidence to establish that she was connected to the workforce beyond her
temporary employment; thus, that basic eligibility prong was not met after 4 April 2020.
DWS claims that Pillow would have been denied PUA for the weeks subsequent to her
temporary employment until she could establish a connection to the workplace.
The primary question to be answered in this case is whether Pillow’s entitlement to
PUA extended beyond the end date of her temporary employment.4 And the parties appear
to agree that the answer to this question lies in the application of section 2102(a)(3)(A)(ii)
of the CARES Act. Pillow focuses on the “unable or unavailable to work” language of
subsection (a)(3)(A)(ii)(I), which describes a covered individual as “otherwise able to work
and available for work within the meaning of applicable State law, except the individual is
unemployed, partially unemployed, or unable or unavailable to work” due to one of the
COVID-related reasons listed.
The Board, on the other hand, focuses on the COVID-related reasons cited by
Pillow: unable to reach the place of employment because the individual has been advised
by a health care provider to self-quarantine (subsection (ff)), the individual has to quit his or
4
Pillow raises several other points, including the weekly certification argument
described above and the propriety of a fraud investigation, but these arguments were not
made below, and this court does not consider issues raised for the first time on appeal.
Rossini v. Dir., 81 Ark. App. 286, 101 S.W.3d 266 (2003).
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her job as a direct result of COVID-19 (subsection (ii)), or the individual’s place of
employment is closed as a direct result of COVID-19 (subsection (jj)). The Board reasons
that after Pillow’s temporary employment concluded, none of these subsections applied,
because Pillow no longer had employment that she could not reach (ff), a job she had to
quit (ii), or employment that was closed (jj). In other words, she was not “unable or
unavailable to work” due to any of these reasons.
We hold that it is not enough for Pillow to testify that she remained unable or
unavailable to work due to concerns about COVID-19. Under the plain language of the
statute, a claimant’s status as “unemployed, partially unemployed, or unable or unavailable
to work” must be due to one of the COVID-19-related reasons listed in the statute. We
agree with the Board’s reasoning that after Pillow’s temporary employment concluded, the
subsections she relies on no longer applied. We hold that the Board could have reasonably
reached its decision as a result of the evidence presented, and we therefore hold that the
Board’s decision is supported by substantial evidence and affirm.
Affirmed.
ABRAMSON and HIXSON, JJ., agree.
Jaden Atkins, Legal Aid of Arkansas, for appellant.
Cynthia L. Uhrynowycz, Associate General Counsel, for appellee.
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