UIPL_16-20_Change_2_Attachment_1.pdf

ETA Advisory File Text

I-1 Attachment I of UIPL No. 1 6-20 Change 2 Ad ditional Questions and Answer s about the Pandemic Unemployment Assistance PUA Program Refer to UIPL Nos. 16 -20 and 16 -20 Change 1 for additional information regarding administration of the PUA program. Calculating Benefit Entitlement including the Weekly Benefit Amount WBA .......................... 2 Eligibility Initial Claims ................................ ................................ ................................ ............... 3 Eligibility Not Eligible for Regular Unemployment Compensation UC ................................ ... 5 Eligibility COVID -19 Related Reasons ................................ ................................ ........................ 6 Eligibility Ongoing ................................ ................................ ................................ ....................... 7 Overpayments and Fraud ................................ ................................ ................................ ................. 8 Financial Information and Reporting ................................ ................................ ............................. 10 I-2 Calculating Benefit Entitlement including the Weekly Benefit Amount WBA 1. Question If an individual was previously eligible for regular UC and now quali fies for PUA should the WBA from the regular UC claim carry over Answer No. The state must calculate a WBA specific to the PUA claim. The WBA for PUA must be calculated according to 20 C.F.R. 625.6 with calendar year CY 2019 as the base period. R efer to Attachment II of UIPL No. 16 -20 Change 1 for additional information on calculating the PUA WBA. This is true even if the PUA WBA is lower than the prior WBA under other sta te or federal benefit programs. 2. Question If a state temporarily implemented the PUA program paying the minimum PUA WBA pending the claimant s provision of income documentation as set forth in UIPL No. 03 -20 what steps must the state take to fully implement PUA requirements for calculating the PUA WBA Answer States must accept documentation of income to determine a claimant s eligibility for a higher PUA WBA at any time during the Pandemic Assistance Period. The provisions set out in 20 C.F.R. 625.6 apply with respect to calculation of the PUA WBA to the same extent and in the same manner as in the case of DUA. The state must take into account any existing wage records and con sider the individual s declaration of self -employment and other wages at the time of initial claim filing to calculate the WBA . The individual will then have 21 days to submit documentation substantiating the declaration to continue receiving a WBA above the minimum PUA WBA as described in Question 20 of Attachment I to UIPL No. 16 -20 Change 1 . If at the time of implementing the PUA program the state processed claims using the minimum PUA WBA the state must provide a monetary determination for all PUA claims and include notice that the individuals may submit documentation to be considered for a higher PUA WBA at any time during the Pandemic Assistance Period. The state must imm ediately issue a monetary redetermination if the state determines the documentation is sufficient to permit a re -computation for a higher PUA WBA . The mone tary determination applies to all weeks of unemployment that the individual filed during the Pandemi c Assistance Period. The state must recalculate the PUA WBA for any weeks previously paid and provide supplementary payment as appropriate. Further the state must ensure that new PUA claims are processed in accordance with 20 C.F.R. 625.6 moving forward . 3. Question If the documents submitted by a self -employed individual only show the gross income can this be used to support a higher WBA Answer No. The monetary determination for a self -employed individual must be based on proof of net income. As di scussed in Question 19 of Attachment I to UIPL No. 16 -20 Change 1 acceptable documentation includes but is not limited to state agency wage I-3 records pay check stubs bank receipt s business records ledgers contracts invoices and billing statements. If the state is unable to determine net income based on the proof provided the individual will receive the minimum PUA WBA . Refer to Question 15 for how an individual reports sel f-employment income when filing a continued claim. 4. Question May a Peace Corps participant who is no longer volunteering because his or her volunteer site is closed due to COVID -19 use wages from the Peace Corps to be considered for a higher PUA WBA Answer Yes. Although wages from a Peace Corps participant are generally considered to be a stipend and not covered wages for purposes of regular UC 20 C.F.R. 625.6 a 1 provides that wages not covered under state law shall be treated in the same mann er and with the same effect as covered employment and wages when calculating the PUA WBA. 5. Question Must the state offer an individual the option of withholding federal taxes from PUA Answer While this is not required for PUA the state is strongly encouraged to provide it as an option for PUA recipients. Question 24 in Attachment I to UIPL No. 16 -20 Change 1 confirms that PUA benefits are subject to federal income taxation. The state is required to offer an individual the option of withholding federal taxes from regular UC as detailed in Section 3304 a 18 of the Federal Unemployment Tax Act FUTA and discussed in UIPL No. 17 -95 . Additionally t he state must inform the individual that PUA benefits are included in the individual s gross income for federal income tax purposes and that the individual will receive Form 1099 -G to file with his or her i ncome tax return. This information may be included on the Notice of Monetary Determination in the Benefit Rights Information packet or anywhere else that the state deems appropriate for notifying individuals. Eligibility Initial Claims 6. Question Doe s the CARES Act contain an age requirement to receive PUA benefits Answer No but it is possible that federal or state laws relating to the employment of minors might prohibit an individual from qualifying for PUA . To be eligible for PUA Section 2102 a 3 A ii I of the CARES Act provides that individuals must self -certify that they are otherwise able to work and available for work within the meaning of applicable State law except that the individual is unemployed partially unemployed or unable or unavailable to work because of one or more of the COVID -19 related reasons. I-4 Consistent with federal and state laws on employment of minors there may be restrictions on the number of hours days and types of work a n individual may perform. If feder al and state laws on restricting minors employment do not make it illegal to employ the individual and the individual meets the state s able and available requirements the individual may be eligible for PUA. 7. Question My state generally finds that a co rporate shareholder is not unemployed because he or she continues to act on behalf of the company. Is a corporate shareholder eligible for PUA Answer It depends. If the individual is a corporate shareholder and providing services for the corporation the individual may be eligible for regular UC depend ing on state law . If the individual performed services for the corporation and received compensation and is not eligible for regular UC then he or she m ay be eligible for PUA provided the individual is unemployed partially unemployed or unable or unavailable to work due to one or more of the COVID -19 related reasons listed in Section 2102 a 3 A ii I of the CARES Act. 8. Question An individual is participating in work study and has directed that his or her wages be sent directly to pay the costs of tuition room and board and books. Th e individual is now unable to work due to a school closure because of COVID -19. Can he or she collect PUA Answer An individual participating in work study who is not eligible for regular UC whose worksite closed as a direct result of COVID -19 and who has suffered a loss of income may be eligible for PUA . 9. Question Is an incarcerated individual who is no longer participating in the work release program bec ause the jail closed this program due to COVID -19 eligible for PUA Answer No. The termination of a work release program is not an identified COVID -19 related reason in Section 2102 a 3 A ii I of the CARES Act. Further the incarcerated individual is not otherwise able to work and available for work within the meaning of applicable State law because of his or her incarcerated status. 10. Question Is a self -employed child care provider who is providing child care for fewer children as a result of th e COVID -19 pandemic eligible for PUA Answer If the self -employed child care provider can establish that he or she has experienced a significant diminution of his or her customary full -time services because of COVID -19 he or she may be eligible for PUA under the additional eligibility criterion established by the Secretary pursuant to Section 2102 a 3 A ii I kk of the CARES Act . This individual s benefit amount may be reduced because of income from continued partial employment. I-5 11. Question Is a fre elance writer who works from home but is no longer getting paid for any work eligible for PUA Answer It depends. Section 2102 a 3 B of the CARES Act provides that an individual who has the ability to telework with pay is not covered under PUA. Ho wever if the freelance writer has experienced a significant diminution of freelance work because of COVID -19 regardless of his or her ability to telework he or she may be eligible for PUA under the additional eligibility criterion established by the Sec retary pursuant to Section 2102 a 3 A ii I kk of the CARES Act though his or her benefit amount may be reduced because of income from continued partial employment. Eligibility Not Eligible for Regular Unemployment Compensation UC 12. Question Is an individual eligible for PUA if he or she is disqualified from regular UC because of a prior quit or termination Answer This question arises from a state s confusion with Question 33 in UIPL No. 16 - 20 Change 1 which provides that an individual may be eligible for PUA if he or she is disqualified from regular UC because of a prior quit or termination and the Program Integrity statement which advises that an individual is o nly entitled to benefits if he or she is no longer working through no fault of his or her own. The answer depends on the facts . The key factor is the reason that the individual is unemployed partially unemployed or unable or unavailable to work for the week in question. Question 33 i n Attachment I to UIPL No. 16 -20 Change 1 advises that if the individual is disqualified from regular UC for a cause that occurred prior to the indi vidual s COVID - 19 related reason he or she may be eligible for PUA . Additionally Question 31 in Attachment I to UIPL No. 16 -20 Change 1 advises that if the individual is current ly unemployed partially unemployed or unable or unavailable to work because of at least one of the COVID -19 related reasons listed in Section 2102 a 3 A ii I of the CARES Act then the individual may be eligible for PUA. Stated another way i f the individual is disqualified from regular UC because of the prior separation issue but is currently unable or unavailable to work for one of the listed COVID -19 related reasons in Section 2102 a 3 A ii I of the CARES Act then the individual may be eligible for PUA. I-6 13. Question How might penalty weeks affect an individual s eligibility for PUA depending on my state law Since addressing the question of penalty weeks with Question 37 of Attachment I to UIPL No. 16 -20 Change 1 the Department received a few follow -up questions. W e provide this additional clarification. A. Is an individual eligible for PUA when the state law provides that an individual is eligible for regular UC but must serve penalty weeks before receiving regular UC Answer No. Where state law says that the individual is eligible for regular UC but not paid until the penalty weeks are served the individual does not meet the eligibility requirement in Sect ion 2102 a 3 A i of the CARES Act to be ineligible for regular UC . Therefore the individual may not receive PUA . Additionally because the individual is eligible for regular UC and ineligible for PUA the individual cannot serve fraud penalty weeks through a PUA claim . B. Is an individual eligible for PUA when the state s law requires that an individual serve penalty weeks before being eligible for regular UC Answer It depends. If under the state s law the individual is not eligible for regular UC PEUC or EB while serving the penalty weeks and the individual is unemployed partially unemployed or unable or unavailable to work because of one of the COVID - 19 related reason s listed in Section 2102 a 3 A ii I of the CARES Act the individual may be eligible for PUA. State law will determine whether the weeks of filing for PUA may be used to satisfy such penalty weeks for regular UC. Eligibility COVID -19 Related Reasons 14. Question If an individual becomes unemployed for reasons unrelated t o COVID -19 and now is unable to find work because businesses have closed or are not hiring due to COVID -19 is he or she eligible for PUA Answer No. An individual is only eligible for PUA if the individual is otherwise able to work and available to w ork but is unemployed partially unemployed or unable or unavailable for work for a listed COVID -19 related reason under Section 2102 a 3 A ii I of the CARES Act. Not being able to find a job because some businesses have closed and or may not be hir ing due to COVID -19 is not a n identified reason. I-7 Eligibility Ongoing 15. Question How does a self -employed individual in the process of reopening his or her business report earnings for the week Answer The provisions set out in 20 C.F.R. 625. 6 f appl y with respect to reportable income to the same extent and in the same manner as in the case of DUA. A self - employed individual must report gross income when filing a continued claim . Because the term is undefined in the regulation state law will determ ine the definition of gross income for purposes of a self -employed individual. Refer to Question 3 for how self -employment income is evaluated when calculating the weekly benefit amount. 16. Question Is an individual who refuses an offer of work due to legitimate COVID -19 health and safety concerns eligible for PUA Answer It depends. To qualify for PUA an individual must be 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 of one of the COVID -19 -related reasons outlined in Section 2102 a 3 A ii I of the CARES Act. An individual is considered available for work under state law if the individual does not limi t his or her availability for suitable work. Many state s however have suitable work provisions that consider work that unreasonably exposes an individual to safety risks to be un suitable. If an individual receiving PUA is offered and refuses work tha t unreasonably exposes him or her to COVID -19 the state may conclude that the work is not suitable if permitted under the state s suitable work provisions . The individual may still be eligible for PUA provided the other eligibility requirements are met . Likewise if an individual were to refuse work that would be considered suitable under state law but turned the work down for one of the COVID -19 -related reasons in Section 2102 a 3 A ii I of the CARES Act the individual would still be eligible for PUA. Additionally the individual may still be eligible for PUA if he or she were to refuse work that would be considered suitable under state law but turned the work down for good cause under state law. To continue to be eligible for PUA aft er turning down suitable work for good cause t his individual still must be unemployed partially unemployed or unable or unavailable to work because of one of the COVID -19 related reason s. I-8 17. Question Under DUA an individual is no longer eligible f or benefits when the conditions caused by the disaster no longer exist. When does an individual s eligibility for PUA end Answer To be eligible for benefits the individual must meet the requirements to be a covered individual under section 2102 a 3 A of the CARES Act including that the person must be unemployed partially unemployed or unable or unavailable to work because of a listed COVID -19 related reason in Section 2102 a 3 A ii I of the CARES Act. As discussed in Question 45 of Attachme nt I to UIPL No. 16 -20 Change 1 eligibility is determined on a weekly basis and the individual must certify for an identified COVID -19 related reason each week to receive payment. The individual ceases to be eligible when he or she no longer meets the requirements to be a covered individual in a given week . 18. Question May an individual who stops receiving PUA benefits reopen the PUA claim and resume receiving benefits if he or sh e becomes unemployed again due to a qualifying COVID -19 reason Answer Yes. An individual may reopen the PUA claim and resume receiving benefits provided he or she meets the eligibility requirements. 19. Question May an individual collecting PUA also par ticipate in a Short -Time Compensation STC plan with his or her employer Answer No. The STC program covers individuals whose employer is reducing the number of hours worked by the individual to avoid layoffs. Eligibility for the PUA program by contr ast requires that the individual be unemployed partially unemployed or unable or unavailable to work because of a listed COVID -19 related reason in Section 2102 a 3 A ii I of the CARES Act. None of the listed COVID -19 related reasons cover a scena rio in which the employer is seeking to reduce hours to avoid layoffs. Overpayments and Fraud 20. Question May an overpayment of PUA benefits be waived if the individual was not at fault Answer No. The provisions set out in 20 C.F.R. 625.14 apply with r espect to PUA overpayments to the same extent and in the same manner as in the case of DUA. As described in 20 C.F.R. 625.14 e t here is no waiver provision for PUA overpayments regardless of cause. Any overpayments must be recovered through offset of future benefits and the state s normal collection procedures. I-9 21. Question May a state impose its 15 percent fraud penalty when an individual commits fraud on a PUA claim Answer No. The provisions set out in 20 C.F.R. 625.14 apply with respect to PUA overpayments and fraud to the same extent and in the same manner as in the case of DUA. States may not apply their state penalties and disqualification periods to PUA overpayments. However 20 C.F.R. 625.14 j provides that applicable criminal prosecution and penalties are available . 22. Question May a state impose its own disqualification period when an individual commits fraud on a PUA claim Answer No. The provisions set out in 20 C.F.R. 625.14 apply with respect to PUA overpayments to the same exten t and in the same manner as in the case of DUA. 20 C.F.R. 625.14 i sets the disqualification period for PUA and requires that the disqualification be based on when the fraud occurs. If the fraud was in connection with the initial application for exampl e the individual says he or she quit the job because of COVID -19 and the state determines the individual was fired for reasons not related to COVID -19 the individual would be disqualified for the entire Pandemic Assistance Period. If the fraud happened during the continued claim series the disqualification would apply to the week the fraud occurred plus the next two compensable weeks for PUA that immediately follow that week. I f the individual is not otherwise entitled to PUA following the week of fr aud then the disqualification would be assessed on the first two weeks in which the individual once again bec omes eligible for PUA . 23. Question Because the state must rely on self -certification to assess eligibility for PUA what tools does a state truly have in addressing the suspicion of fraud Answer This question arises because UIPL No. 23 -20 requires that a state implement the same integrity functions that it uses for regular U C to address fraud in the PUA program. While Section 2102 of the CARES Act relies on self -certification to verify that an individual is covered under the PUA program the state has authority to request supporting documentation when investigating the pote ntial for fraud and improper payments. 20 C.F.R. 625.14 h refers to the Secretary s Standard for Fraud and Overpayment Detection found in Sections 7510 et seq . of the Employment Security Manual 20 C.F.R. Part 625 Appendix C . The state should use the cross -matches and tools described in Section 4.b. of UIPL No. 23 -20 to monitor for suspicious activity on PUA claims as it does for regular UC. This includes the requirement to sh are information with the Department s Office of Inspecto r General OIG and the strong recommendation to collaborate with the UI Integrity Center I-10 Center . The Center established by the Department and operated by the National Association of State Workfor ce Agencies provides states with the Integrity Data Hub IDH which includes the Suspicious Actor Repository SAR suspicious e -mail domains Multi -State Cross -Match MSCM foreign internet protocol IP address detection and the Fraud Alert system . The Center has provided states with new tools to support data mining to detect fraud. In addition the Center is hosting weekly calls with states the Department and the Department s Office of the Inspector General to share information regarding fraud sc hemes and successful state practices to abort them and claw back funds including working with banks to help with fraud detection and recovery . The Center also identifies organizes shares and supports promising and innovative integrity practices and pr ovides state -specific consulting mentoring and technical assistance . If a state has reasonable suspicion of fraudulent activity on a claim then the state may request supporting documentation to address the concern. Requests for supporting documentatio n and a state s investigative and adjudicative practices should be done in alignment with the processes described in UIPL No. 01 -16 to ensure due process is afforded to the individua l. Financial Information and Reporting 24. Question Is the state required to submit monthly reports of Pandemic Unemployment Assistance Activities ETA 902P if there is no activity in the initial months of implementing the program Answer Yes. As descri bed in Section C. of Attachment VI to UIPL No. 16 -20 the state must begin submitting the ETA 902P report in the month following the date of the agreement and continue through the end of the Pandemic Assistance Period and until all payment and appeals activit ies are complete.