Labor Dept. answers Wyden, clarifies workers covered by jobless benefits

WASHINGTON -- Senate Finance Committee Ranking Member Ron Wyden, D-Ore., announced Monday that the Department of Labor has made clear, after a confusing start, that workers Congress intended to be covered by the Pandemic Unemployment Assistance Program will receive the benefits they deserve. 

“Workers have been hit by an economic wrecking ball, with 22 million filing for unemployment benefits in the past month. Supercharged unemployment benefits are critical to getting workers through this unprecedented economic crisis and they can’t be allowed to fall through the cracks,” Wyden said. “I appreciate the Labor Department making crystal clear that workers Congress intended to cover get the assistance they need to keep food on the table and a roof over their heads.”

In response to a request led by senators Wyden and Chuck Schumer, D-N.Y., the department clarified a number of points:

• Gig workers are eligible for unemployment benefits if they are facing reduced demand for their services, but are not barred from offering them.
• Workers are eligible for unemployment benefits if they have symptoms of COVID-19 and seek a diagnosis—a positive COVID-19 test is not required.
• Workers are eligible for unemployment benefits if they are diagnosed with COVID-19 and are forced to take unpaid time off work.
• Workers are eligible for unemployment benefits if their child care facility is closed after school was scheduled to adjourn for the year.  
• Workers are eligible for unemployment benefits if they are subject to stay-at-home or shelter-in-place orders that prevent them from working.
• Workers are eligible for unemployment benefits if they are advised to quarantine by a health care provider. 
• Workers remain eligible for unemployment benefits if their reason for eligibility changes—they do not need to file a separate application.
• Workers in U.S. territories are eligible for the additional $600 per week in unemployment benefits.

Text of the department’s letter to Wyden is available here and as follows: 

Dear Senator Wyden:

The Department of Labor (Department) received your letter regarding the Pandemic Unemployment Assistance (PUA) program under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The Department welcomes another opportunity to provide insight into previous, current, and ongoing work on this front.

As noted in our April 9 response to your April 7 letter, the Department's work to support state workforce and unemployment insurance (UI) agencies began even before the full scope of COVID-19's impact became clear. In late February 2020, the Department was engaged with the state of Washington on proactive measure and flexibilities the state could use to address COVID 19 issues. Since that time, the Department has issued six Unemployment Insurance Program Letters (UIPLs) providing needed guidance and instruction for states to implement the new unemployment insurance provisions of the CARES Act. The essential guidance for the Act's implementation was issued in less than ten days after the bill's signing. States have used this information to help them provide additional unemployment benefits to workers across the country, including the self-employed and other workers who are not covered by the traditional UI program.

On April 5, the Department's Employment and Training Administration (ETA) published UIPL No. 16-20, containing operating instructions for states on implementation of the PUA program. In response to clarifying questions ETA has received and responded to regarding the UIPL, follow-up guidance will be issued in the near future. This guidance will respond to frequently asked questions to support state workforce agencies in implementing the PUA program and will be posted on ETA's website for state workforce agencies' reference. ETA's senior leadership has also scheduled a webinar to discuss this information with state workforce agencies on April 22. 

The Department has proactively and consistently worked to support state workforce and UI agencies in this unprecedented time, including the specific items discussed below.

In your letter, you raise a number of questions and suggestions regarding ETA's implementation of the CARES Act. The following are updates on the Department's ongoing work on the items you noted:

1. Either a positive test or having symptoms and seeking a diagnosis is sufficient for

PUA eligibility. ETA's guidance for sections 2102(a)(3)(A)(11)(1)(aa), (bb), and (ff) of the CARES Act references circumstances under which an individual testing positive for COVID-19 possibly qualifies him or her to receive PUA. ETA will continue to reiterate the guidance in UIPL 16-20 that while a positive test is sufficient to qualify for PUA under these provisions, a qualifying diagnosis does not require a positive test. It was for this purpose that, as your letter notes, the guidance referred to a test or diagnosis. Any diagnosis from a qualified medical health professional is also sufficient for a person to qualify for PUA under section 2102(a)(3)(A)(ii)(I), provision (aa), for an individual who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19 and seeking a diagnosis; (bb) when a member of the individual's household has been diagnosed with COVID-19; and (ff) when the individual is unable to reach the place of employment because the individual has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.

2. Either a positive test or having symptoms and seeking a diagnosis is sufficient for

A eligibility, regardless of the impact on the employment relationship. The examples provided in UIPL No. 16-20 for which a claimant may qualify for PUA under section 2102(a)(3)(A)(ii)(1)(aa) of the CARES Act are not intended to be comprehensive. Quitting one's job is not the only circumstance under which an individual is unemployed, partially unemployed, or unable or unavailable for work because the individual has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19 and is seeking a medical diagnosis. ETA will continue to reiterate the guidance in UIPL 16-20, issued on April 5 and prior to the date of your letter, that an individual may also qualify under section 2102(a)(3)(A)(ii)(1)(aa) of the CARES Act if an individual is forced to take unpaid time off work because they have been diagnosed with COVID-19 or are experiencing symptoms of COVID-19 and seeking a medical diagnosis.

3. The closure of a school or another facility is equally sufficient for PUA eligibility.

Section 2102(a)(3)(A)(ii)(I)(dd) of the CARES Act provides that an individual may be eligible for PUA if he or she has primary caregiving responsibility for a child or other person who 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. The example provided in UIPL No. 16-20 indicates that school is not closed as a direct result of the COVID-19 public health emergency after the school year was originally scheduled to end. Acknowledging that parents may rely on other facilities to provide summer care for their children, ETA will continue to reiterate the guidance stated in both UIPL 16-20 from April 5 and the public FAQs from last week that if these other facilities are also closed due to the COVID-19 public health emergency, the individual may be eligible for PUA benefits.

4. Stay-at-home and shelter-in-place orders are equally sufficient for PUA eligibility. The example provided in UIPL No. 16-20 for which a claimant may qualify for PUA under section 2102(a)(3)(A)(ii)(1)(ee) of the CARES Act includes

See Frequently Asked Questions, https://www.dol.gov/coronavirus/unemployment-insurance.

an individual who is unable to travel because of a state or municipal order restricting travel that was instituted to combat the spread of COVID-19. AS ETA made clear in FAQs posted last week and prior to the date of your letter, this also applies to stay at-home, shelter-in-place, and other orders that require individuals to stay home in quarantine to reduce the spread of COVID-19.2

5. Health care advice to self-quarantine is sufficient for PUA eligibility. The

examples provided in UIPL No. 16-20 for which a claimant may qualify for PUA under section 2102(a)(3)(A)(ii) (I) (ff) of the CARES Act are not intended to be exclusive or comprehensive; they are examples. ETA will continue to reiterate the guidance in UIPL 16-20 that this provision allows for PUA eligibility for all individuals who are advised by a healthcare provider to self-quarantine due to any serious health concerns related to COVID-19.

6. The Secretary of Labor established additional criteria to cover gig workers.

The Secretary used his authority under section 2102(a)(3)(A)(ii) (1) (kk) to ensure additional eligibility criteria for rideshare drivers. This expanded eligibility in the CARES Act comes on top of the flexibilities that the Department outlined for states on March 12, 2020 in UIPL 10-20. In keeping with previous guidance, ETA will continue to remind states that an independent contractor may be eligible for PUA if they are unemployed, partially unemployed, or unable or unavailable to work because of one of the COVID-19-related reasons. As the Department explained in FAQs posted last week prior to your letter, this includes an independent contractor who experiences a significant diminution of work as a direct result of COVID-19.3

7. PUA eligibility factors can be both sequential and contemporaneous. An

individual may continue to qualify for PUA if the precise provision for initial qualification overlaps with or is adjacent to a subsequent qualification under another precise provision provided under section 2102(a)(3)(A)(ii)(I) of the CARES Act. ETA will clarify that this applies without requiring that the individual complete a separate initial claim.

8. Territories are able to implement FPUC. ETA has made clear that under a plain

reading of section 2102 of the CARES Act, territories are eligible for Federal Pandemic Unemployment Compensation (FPUC), the $600 weekly benefit to supplement PUA benefits. ETA has already informed the territories of this interpretation, and is providing ongoing technical assistance to support implementation. Additionally, please find a letter of gratitude from the Governor of Guam to Secretary Scalia enclosed on this point.

The Department will continue to support state workforce agencies as they implement the CARES Act. As is evidenced by the attached chronology, the Department has been and remains committed to proactive and ongoing communication with state workforce and UI partners. If you have additional questions, please contact the Office of Congressional and Intergovernmental Affairs at (202) 693-4600.