Disaster Unemployment Assistance eligibility questions and answers

Accessible letter (https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2008/UIPL22-08acc.pdf)

EMPLOYMENT AND TRAINING ADMINISTRATION ADVISORY SYSTEM
U.S. DEPARTMENT OF LABOR
Washington, D.C. 20210
CLASSIFICATION: UI
CORRESPONDENCE SYMBOL: OWS/DUIO
DATE: July 2, 2008

ADVISORY: UNEMPLOYMENT INSURANCE PROGRAM LETTER 22-08

TO:            STATE WORKFORCE AGENCIES

FROM:          BRENT R. ORRELL /s/
Deputy Assistant Secretary

SUBJECT:       Disaster Unemployment Assistance – Questions and Answers

I.    Purpose. To respond to questions from states concerning eligibility determinations related
to Disaster Unemployment Assistance (DUA).
II.   References. ETA Handbook No. 356, 2nd Edition, Disaster Unemployment Assistance;
DUA Regulations at 20 CFR Part 625; and Unemployment Insurance Program Letter
(UIPL) 26-07.
III. Background. DUA provides temporary income replacement to eligible individuals who are
unemployed as a direct result of a major disaster declared by the President of the United
States. To qualify for DUA, individuals must first be determined ineligible for
unemployment compensation (UC) under any other state or Federal law. State UC
agencies administer the DUA program on behalf of the U.S. Department of Labor, acting
as agents of the Federal government.
The Department of Homeland Security, Federal Emergency Management Agency (FEMA),
provides the funding for DUA benefits and the states’ DUA program administrative costs.
IV. Eligibility Determinations for Receipt of DUA. This advisory includes information
concerning DUA eligibility requirements. State UC agencies are responsible for obtaining
information and conducting the necessary fact-finding to make eligibility determinations
for DUA, including contacting employers and/or others, as necessary. State UC agencies
must also provide DUA applicants with information concerning their rights and
responsibilities related to DUA. Individuals filing for DUA are required to submit proof of
employment and wages and other such information needed to establish their DUA
entitlement. The DUA regulations at 20 CFR Part 625 govern eligibility for DUA, but also
provide specific instances where state law applies.

RESCISSIONS: None
EXPIRATION DATE: Continuing

This UIPL is being issued because states have requested guidance in addressing issues that
require adjudication. These issues include but are not limited to whether: 1) good cause
exists for late filing of a DUA claim; 2) an individual’s unemployment is a direct result of a
major disaster; 3) an individual provided sufficient proof of employment/wages
documentation; 4) an individual is able to work and available for work; and 5) good cause
exists for refusal of suitable work. The attachment to this UIPL contains a set of questions
and answers addressing the above issues.
V.   Action. State Administrators are requested to provide this guidance to appropriate staff.
VI. Attachment. Disaster Unemployment Assistance (DUA) – Questions and Answers.

Attachment: Disaster Unemployment Assistance Questions and Answers (https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2008/UIPL22-08a1.pdf)

Attachment to UIPL No. 22-08

Disaster Unemployment Assistance (DUA)
Questions and Answers

A.   Determining Good Cause for Late Filing of DUA Claims
The DUA regulations at 20 CFR 625.8(a) require that an initial application for DUA be
filed within 30 days from the date the availability of DUA is announced in the state, but
permit a limited extension if the applicant had good cause for late filing.

1. Question: ETA Handbook No. 356 indicates “good cause” for the late filing of an
initial DUA claim may exist even if the same circumstances would not constitute
“good cause” under state law for late filing of an unemployment compensation (UC)
claim. What circumstances constitute “good cause” for late filing of an initial DUA
claim?
Answer: “Good cause” exists for late filing when an individual’s circumstances or
the widespread impacts of the disaster are such that it is reasonable to believe that the
individual did not know about the availability of DUA or it is otherwise not
reasonable to expect a claim to be filed within 30 days. However, under no
circumstances will a claim be considered timely when filed after the Disaster
Assistance Period (DAP). The DAP is “the period beginning with the first week
following the date the major disaster began, and ending with the 26th week
subsequent to the date the major disaster was declared.” (See 20 CFR 625.2(f).)
2. Question: What are some examples of when a state may determine that good cause
exists for late filing of a DUA claim?
Answer: Some examples of good cause include, but are not limited to, when:
a) the individual was employed in a Federal, state, or locally-funded temporary job
designated to assist in clean-up or other activities that enables the community to
recover from the effects of the major disaster, that work continued beyond the 30-day filing period, and the DUA claim is filed when the temporary employment
terminates;
b) the individual could not have reasonably known about the availability of DUA
because appropriate announcements were not published as a result of a disruption
of communication services or were not published in the appropriate language(s);
c) the state can reasonably confirm that the state or FEMA provided incorrect claim
filing information resulting in the late filing of a claim;
d) the individual, such as a migrant/seasonal farm worker, returned to the disaster
area after the 30-day filing deadline intending to start work as arranged prior to
the disaster, but the work no longer was available due to the disaster; and
e) the individual exhausts entitlement to other UC and subsequently files for DUA.

3. Question: What is an example of when good cause does not exist for late filing of a
DUA claim?
Answer: An example would be when the appropriate announcement(s) was issued,
an individual had the opportunity to know about the availability of DUA, and the
only reason given for late filing of a claim is that the individual was unsure whether
s/he would be eligible for these benefits.
B.   Determining Unemployment as a Direct Result of a Major Disaster
The DUA regulations at 20 CFR 625.4 and 625.5 require that an individual’s
unemployment must be a direct result of a major disaster to qualify for DUA. In general,
an individual's unemployment is a direct result of the major disaster when it is an
immediate result of the major disaster itself, and not the result of a longer chain of events
precipitated or exacerbated by the disaster.
1. Question: What are some examples of when unemployment may be determined to be
the direct result of a major disaster?
Answer: Some examples of when an individual is considered unemployed as a direct
result of a major disaster include, but are not limited to, when:
a) the individual’s place of employment is located within the disaster area and was
damaged or destroyed, or is otherwise unable to operate due to a power outage, or
utilities failure caused by the disaster, or because employees are unable to reach
the business;
b) the individual’s place of employment was not damaged due to the disaster and
work is available, but the individual is unable to reach his/her place of
employment due to the closure or inaccessibility of roads due to the disaster;
c) the individual is unable to reach his/her place of employment due to the damage
or destruction of personal transportation caused by the disaster, and the state can
reasonably assure that public and other transportation is also generally
unavailable to the individual to reach his/her place of employment; and
d) the individual cannot work because of an injury that was caused as a direct result
of the disaster, such as an injury from flying debris during a hurricane.
2. Question: When would an individual not be considered unemployed as a direct result
of the major disaster?
Answer: The state will have to adjudicate these issues on a case-by-case basis and
conduct the necessary fact-finding to make a determination. However, one example
of when an individual is not unemployed as a direct result of a major disaster is when
the individual was able to continue his/her employment (i.e., the same work was
available), but s/he voluntarily decided to move out of the disaster area.

C. Proof of Wages/Proof of Employment Documentation and Monetary Determinations
DUA regulations at 20 CFR 625.6(e) provide that states must immediately determine a
weekly benefit amount based on the individual’s statement of employment and wages or self-employment income, on state records, or on documents submitted at the time an individual
files a claim. The individual’s weekly benefit amount will be based on wages or income in
the most recent tax year that ended prior to the individual’s unemployment that was a direct
result of the major disaster.
DUA regulations at 625.6(e)(1) require that an individual submit documentation to
substantiate the employment or self-employment or wages/income within 21 calendar days of
the filing of the initial application for DUA.

1. Question: May a state hold payment of DUA until an individual provides proof of
employment and/or wages?
Answer: No. DUA payments must be made with the greatest promptness
administratively feasible. A state must determine an individual’s eligibility for DUA
based on the individual’s statement of employment or self-employment at the time of the
disaster and wages earned or paid during the DUA base period. States will adjudicate
and pay the claim based on the individual’s statement. However, within 21 calendar days
from the date of filing the initial DUA application, an individual must provide
documentation to substantiate:
a. the individual was working, or was scheduled to begin work, at the time of the
disaster and is unemployed as a direct result of the disaster; and
b. the amount of wages earned or paid during the base period of the DUA claim.
2. Question: What documentation is acceptable for an individual to establish that he/she
was employed or self-employed at the time of the disaster and unemployed as a direct
result of the disaster?
Answer: The DUA regulations require an individual to show proof of employment or
self-employment at the time of the disaster, and income or wages earned or paid. Such
documentation can include, but is not limited to, copies of recent pay check stubs, bank
receipts, billing notices, recent newspaper ads, recent business ads in the yellow pages of
the telephone book(s), statement(s) from recent customers, and/or current business
licenses, a statement from the last employer affirming the individual was working at the
time of the disaster and became unemployed as a result of the disaster.
3. Question: What documentation is acceptable for an individual to establish that s/he was
about to commence employment or self-employment in the area but was unable to do so
as a direct result of the disaster?
Answer: Acceptable documentation can include, but is not limited to, copies of letters of
hire, business registrations, building leases, business-related receipts, newspaper ads,
yellow page telephone ads, and business related correspondence.

4. Question: The DUA regulations at 20 CFR 625.9(a)(2) state that if reliable records of
employment/self-employment and wages/income are not obtainable, an individual’s
eligibility for DUA may be determined on the basis of an affidavit. May the DUA
application form serve as an affidavit for this purpose?
Answer: Yes, provided the DUA application captures the necessary information
regarding employment or self-employment, and wages earned or paid, to allow the state
to determine an individual’s eligibility for DUA.
5. Question: When an individual does not provide proof of employment or commencement
of employment within the required 21 calendar days, what action(s) must be taken by the
state?
Answer: The state must issue a denial of benefits and establish an overpayment for any
benefits paid.
6. Question: How will the state calculate the DUA weekly benefit amount when an
individual cannot provide proof of base period wages (i.e., wages for the most recent
completed tax year) at the time a DUA claim is filed?
Answer: If the individual is otherwise eligible, the state will initially calculate the DUA
weekly benefit amount (WBA) based on the individual’s statement of earnings during the
DUA base period. If the individual does not or cannot provide proof of earnings after 21-calendar days from filing the initial DUA application, the individual’s weekly benefit
amount will be reduced to the minimum DUA WBA, which is equal to 50 percent of the
average weekly payment of regular compensation in the state (see 20 CFR 625.6(b)).
The WBA must also be adjusted if the proof of earnings differs from his/her initial
statement of earnings. If the adjusted WBA is lower than the original WBA, an
overpayment must be established for any benefits overpaid.
7. Question: When an individual has no wages during the DUA base period but is
otherwise eligible (the individual has substantiated s/he was working or commencing
work at the time of the disaster and is unemployed as a direct result of the disaster), how
will the DUA WBA be calculated?
Answer: If an individual has insufficient wages (or no wages) from employment or
insufficient net income (or no net income) from self-employment in the applicable DUA
base period to compute a WBA, the individual is entitled to a WBA equal to 50 percent
of the average weekly payment of regular compensation in the state (See 20 CFR
625.6(b)). Certain exceptions apply to part-time workers as described in
20 CFR 625.6(b)(1).
8. Question: When an individual provides documentation proving he/she was employed or
self-employed or was to commence employment or self-employment after 21-calendar
days, may the state issue a redetermination?
Answer: If the state has a provision in its law that allows for redeterminations, then the
state will, if the redetermination provision so provides, issue a redetermination and, as
appropriate, cancel any overpayment (see 20 CFR 625.9(c)).

9. Question: When an individual is unable to provide a copy of the prior year income tax
return, what other types of documentation are acceptable to establish monetary
entitlement for DUA?
Answer: Acceptable documentation of wages earned or paid during the DUA base period
(i.e., the most recent tax year that ended prior to the unemployment) includes, but is not
limited to, state agency wage records, documents such as pay check stubs, bank receipts,
business records, ledgers, contracts, invoices, and billing statements.
10. Question: Does the state use gross or net income to calculate the DUA weekly benefit
amount for a self-employed individual?
Answer: States will use “taxable income” as reported on the individual’s tax return to
calculate the DUA weekly benefit amount for a self-employed individual. “Taxable
income” effectively is “net income” as the term is used in the question.
11. Question: Does the state use gross or net income to calculate the DUA weekly benefit
amount for an individual whose wages are not covered for UC purposes?
Answer: States will use “total income” as reported on the individual’s tax return to
calculate the DUA weekly benefit amounts for a non-covered employee. This income is
also used to calculate the DUA WBA for individuals covered for UC (but who do not
qualify for UC). “Total income” effectively is gross income as the term is used in the
question.
D. Determining Individuals’ Ability to Work and Availability for Work
The DUA regulations at 20 CFR 625.4(g) require that an individual be able to work and
available for work within the meaning of the applicable State law. An individual is
deemed to meet this requirement if he/she is injured as a direct result of the disaster
and/or in the case of an unemployed self-employed individual, the individual is
performing activities which are solely for the purpose of enabling the individual to
resume self-employment.
1. Question: If an individual is receiving DUA and during his/her claim series becomes
injured in a disaster-related accident, would the individual meet the “able and
available” requirement even though the injury resulted after the disaster incident
itself?
Answer: The state will have to adjudicate these types of issues on a case-by-case
basis and conduct the necessary fact-finding to make a determination. Two examples
of when the state may determine that an injury, sustained after a disaster, is caused by
a disaster, are when a roof that was damaged by a hurricane, later collapses causing
injury to an individual, or when a gas line that cracked due to an earthquake, later
explodes causing injury to an individual.
2. Question: Are there time limits or restrictions on how long a self-employed
individual may take to restore a business if it is damaged or destroyed by a disaster?
Answer: No. However, unless the individual’s injury is caused by the disaster, in
order to meet availability requirements, a self-employed individual must be actively
working at restoring his/her business to remain eligible for DUA

3. Question: May a diversified farmer who normally works 60 – 80 hours per week
continue to collect DUA if the farm’s main crop was destroyed by the disaster and the
farmer is working only 40 – 50 hours per week on a secondary crop?
Answer: Yes, a diversified farmer who is working less than the farmer’s normal/
customary hours may continue to be eligible for DUA until s/he has resumed normal
operations for periods s/he would have otherwise worked. However, 20 CFR
625.6(f)(2) requires that the farmer’s WBA be reduced by the gross amount of any
income earned from secondary crops (or other business activities), by applying the
earnings allowance for partial or part-total employment under the applicable state
law. This may reduce the DUA WBA to zero.
4. Question: At what point would a fisherman, whose usual operations were impacted
by the disaster, no longer be eligible for DUA?
Answer: When a fisherman has resumed his/her usual and customary activities and is
working his/her usual and customary hours, s/he no longer has a “week of
unemployment” as defined at 20 CFR 625.2(w)(2), and therefore is no longer eligible
for DUA.
E. Other
1. Question: Is a self-employed farmer required to report income at the time it is earned
or received?
Answer: A self-employed farmer must report income from the sale of crops during
the week the payment is received even if the sale occurred in an earlier week (see 20
CFR 625.6(f)(2)).