UIPL22-08a1.pdf

ETA Advisory File Text

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 fili ng. 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 cir cumstances 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 26 th 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 co mmunity 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 arrange d 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. 1 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 wh en it is an immediate result of the major disaster itself and not the result of a l onger 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 outa ge 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 o f 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 th e 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 dir ect 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 basi s 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. 2 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 employme nt and wages or self- employment income on state records or on documents submitted at the ti me 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 unemplo yment 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. 3 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 cal culate 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 o r 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 . 4 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 i ndividual 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 indivi dual is performing activities which are solely for the purpose of enabling the i ndividual 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 earth quake 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 disa ster in order to meet availability requirements a self-employed individual must be actively working at restoring his her business to remain eligible for DUA 5 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 CF R 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 . 6