Pandemic unemployment eligibility for caregivers during school reopening

CLASSIFICATION
   EMPLOYMENT AND TRAINING ADMINISTRATION                 Unemployment Insurance
               ADVISORY SYSTEM                            CORRESPONDENCE SYMBOL
          U.S. DEPARTMENT OF LABOR                        OUI/DUIO
             Washington, D.C. 20210                       DATE
                                                          August 27, 2020

ADVISORY:       UNEMPLOYMENT INSURANCE PROGRAM LETTER NO. 16-20,
                Change 3

TO:             STATE WORKFORCE AGENCIES

FROM:           JOHN PALLASCH
                Assistant Secretary

SUBJECT:        Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 –
                Eligibility of Individuals who are Caregivers for Pandemic Unemployment
                Assistance (PUA) in the Context of School Systems Reopening.

1. Purpose. States have gained experience administering the PUA program under the CARES
   Act, Public Law (Pub. L. 116-136), and have identified additional questions about the PUA
   eligibility of individuals who are caregivers and affected by school systems reopening. The
   purpose of this Unemployment Insurance Program Letter (UIPL) is to address those questions
   concerning the PUA program.

2. Action Requested. The Department of Labor’s (Department) Employment and Training
   Administration (ETA) requests State Workforce Administrators to provide the information
   contained in this UIPL to appropriate program and other staff in state workforce systems as
   they implement the PUA program.

3. Summary and Background.

   a. Summary – The CARES Act was signed into law on March 27, 2020, and includes the
      Relief for Workers Affected by Coronavirus Act set out in Title II, Subtitle A. Section
      2102 of the CARES Act creates the temporary PUA program, which provides
      unemployment benefits for individuals who are: 1) ineligible for regular Unemployment
      Compensation (UC), Extended Benefits (EB), and Pandemic Emergency Unemployment
      Compensation (PEUC) under Section 2104 of the CARES Act; and 2) unemployed,
      partially unemployed, or unable or unavailable to work due to one or more of the
      COVID-19 reasons set out in Section 2102(a)(3)(A)(ii)(I) of the CARES Act.

       As school systems are taking various approaches to operating schools in response to the
       COVID-19 pandemic, states have presented the Department with questions regarding the
       impact of these various approaches on the PUA eligibility of individuals who are
       caregivers of students. This UIPL provides guidance for states in evaluating the PUA

   RESCISSIONS                                            EXPIRATION DATE
   None                                                   Continuing

       eligibility of these individuals, as well as the intersection of PUA with paid leave made
       available under the Families First Coronavirus Response Act (FFCRA) (Pub. L. 116-127).

   b. Background – ETA provided operating, financial, and reporting instructions for the PUA
      program in UIPL No. 16-20, issued on April 5, 2020. ETA addressed questions received
      during a webinar held on the topic, as well as questions submitted through ETA’s
      designated e-mail for COVID-19 UI-related inquiries ([email protected]) in UIPL No.
      16-20, Change 1, issued on April 27, 2020, and UIPL No. 16-20, Change 2, issued on
      July 21, 2020.

       Among other provisions, FFCRA includes the Emergency Paid Sick Leave Act (EPSLA)
       and Emergency Family and Medical Leave Expansion Act (EFMLEA). The
       Department’s Wage and Hour Division (WHD) administers both of these programs.
       Additional details are available at https://www.dol.gov/agencies/whd/ffcra.

       ETA issued UIPL No. 23-20 on May 11, 2020 to remind states of the program integrity
       functions that are required for the regular UI program and the UI programs authorized by
       the CARES Act. Addressing improper payments and fraud in the UI program is a top
       priority for the Department and the entire UI system. During this time of extraordinary
       UI claims workload, there is a heightened need for states to maintain a steadfast focus on
       UI functions and activities that ensure program integrity and the prevention and detection
       of improper payments and fraud across all UI programs.

       To help prevent and detect improper payments, states are required to ensure that their
       employment services, UI, and other workforce partners are engaged with claimants.
       States are expected to track referrals to possible suitable employment. As an added
       measure of program integrity, states are also strongly encouraged to provide a mechanism
       for employers to report information when workers refuse to return to suitable work for
       reasons that do not support their continued eligibility for benefits.

4. Guidance. An individual who is: 1) ineligible for regular UC, EB, and PEUC; and 2) self-
   certifies that he or she is unemployed, partially unemployed, or unable or unavailable to work
   because “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” may be eligible for PUA, as described in Section
   2102(a)(3)(A)(ii)(I)(dd) of the CARES Act.

   However, as described in Section 2102(a)(3)(B) of the CARES Act, the individual is not
   eligible for PUA if he or she has the ability to telework with pay or if he or she is receiving
   paid sick leave or other paid leave benefits, regardless of whether the individual is
   unemployed, partially unemployed, or unable or unavailable to work because of one of the
   COVID-19-related reasons listed in the statute at Section 2102(a)(3)(A)(ii)(I).

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WHD provides a series of Questions and Answers explaining when an individual may be
eligible for paid leave through provisions of FFCRA in the context of school systems
reopening. This is available at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.
The state must treat any paid sick leave or paid leave received by an individual, including
EPSLA and EFMLEA, in accordance with the income restrictions set out in 20 C.F.R.
625.13.

Below we provide three scenarios addressing the PUA eligibility of individuals who are
caregivers and affected by school systems reopening.

Scenario 1: The school system goes fully online as a direct result of the COVID-19 public
health emergency.

When the school system is only providing online instruction, it is not open for students to be
physically present at the school, and therefore is considered closed under section
2102(a)(3)(A)(ii)(I)(dd) of the CARES Act. If the individual must stay home because he or
she is the primary caregiver for the student(s), the individual may be eligible for paid leave
benefits under FFCRA.

If the individual is not receiving paid leave benefits and is unable or unavailable to work
because he or she is the primary caregiver for the student(s), the individual may be eligible
for PUA. An individual who is permitted to work from home, but must provide such ongoing
and constant attention to the student(s) for whom he or she is the primary caregiver that
working from home is not possible, may be considered unable or unavailable for work.
Provided the individual is not eligible for regular UC, EB, and PEUC, then the individual
meets the provisions of item (dd) of Section 2102(a)(3)(A)(ii)(I) of the CARES Act and may
collect PUA.

As described in Section 4.a. of UIPL No. 16-20, an individual who is receiving paid leave for
part of the week or working part-time hours during the week must report such earnings when
filing for PUA. Failure to report such earnings may result in an overpayment. Failure to
report such earnings may also result in penalties for fraud and criminal prosecution. These
earnings will be deducted from the PUA weekly benefit amount in accordance with 20 C.F.R.
625.13.

Scenario 2: The school system operates in a “hybrid” environment as a direct result of the
COVID-19 public health emergency, where students attend school in-person some days of
the week, with the rest of the week being done remotely, online.

When the school system is providing a combination of online and in-person instruction, it is
not open for certain student(s) to be physically present at the school on those certain days
when receiving online instructions, and therefore is considered closed under section
2102(a)(3)(A)(ii)(I)(dd) of the CARES Act. If the individual must stay home to care for the

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   student(s) on the days of remote instruction, the individual may be eligible for paid leave
   benefits under FFCRA.

   If the individual is not receiving paid leave benefits and is unable or unavailable to work
   because he or she is the primary caregiver for the student(s), the individual may be eligible
   for PUA. An individual who is permitted to work from home, but must provide such ongoing
   and constant attention to the student(s) for whom he or she is the primary caregiver that
   working from home is not possible, may be considered unable or unavailable for work.
   Provided the individual is not eligible for regular UC, EB, and PEUC, then the individual
   meets the provisions of item (dd) of Section 2102(a)(3)(A)(ii)(I) of the CARES Act and may
   collect PUA.

   As described in Section 4.a. of UIPL No. 16-20, an individual who is receiving paid leave for
   part of the week or working part-time hours during the week must report such earnings when
   filing for PUA. Failure to report such earnings may result in an overpayment. Failure to
   report such earnings may also result in penalties for fraud and criminal prosecution. These
   earnings will be deducted from the PUA weekly benefit amount in accordance with 20 C.F.R.
   625.13.

   Scenario 3: The school system provides students the option to stay home and attend online
   classes or to attend school in-person full time.

   When the school system provides the individual with a choice between full-time in-person
   instruction and remote learning, it is open for students to be physically present at the school.

   If the individual who is the primary caregiver chooses to have the student(s) participate in
   remote learning instead of in-person instruction, the individual does not meet the provisions
   of item (dd) of Section 2102(a)(3)(A)(ii)(I) of the CARES Act. Unless the individual meets
   another listed COVID-19 related reason under items (aa) through (kk) in Section
   2102(a)(3)(A)(ii)(I) of the CARES Act, the individual is ineligible for PUA. An individual
   who continues to claim PUA benefits under item (dd), despite the reopening of schools, may
   face an overpayment, as well as penalties for fraud and criminal prosecution.

5. Inquiries. We encourage states to contact ETA for technical assistance. Please direct
   inquiries about PUA and other UI matters to [email protected], with a copy to the
   appropriate ETA Regional Office.

   Please direct inquiries about the paid leave provisions under FFCRA, including questions
   from employers, to [email protected].

6. References.

      Coronavirus Aid, Relief, and Economic Security (CARES) Act (Pub. L. 116-136),
       including Title II Subtitle A Relief for Workers Affected by Coronavirus Act;

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      Families First Coronavirus Response Act (Pub. L. 116-127);
      20 C.F.R. Part 625;
      UIPL No. 23-20, Program Integrity for the Unemployment Insurance (UI) Program and
       the UI Programs Authorized by the Coronavirus Aid, Relief, and Economic Security
       (CARES) Act of 2020 - Federal Pandemic Unemployment Compensation (FPUC),
       Pandemic Unemployment Assistance (PUA), and Pandemic Emergency Unemployment
       Compensation (PEUC) Programs, issued May 11, 2020,
       https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=4621;
      UIPL No. 16-20, Change 2, Coronavirus Aid, Relief, and Economic Security (CARES)
       Act of 2020 – Pandemic Unemployment Assistance (PUA) Additional Questions and
       Answers, issued July 21, 2020,
       https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=5479;
      UIPL No. 16-20, Change 1, Coronavirus Aid, Relief, and Economic Security (CARES)
       Act of 2020 – Pandemic Unemployment Assistance (PUA) Program Reporting
       Instructions and Questions and Answers, issued April 27, 2020,
       https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=5899;
      UIPL No. 16-20, Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 –
       Pandemic Unemployment Assistance (PUA) Program Operating, Financial, and
       Reporting Instructions, issued April 05, 2020,
       https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=4628; and
      WHD Families First Coronavirus Response Act: Questions and Answers,
       https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

7. Attachment(s). (None).

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