UIPL_31_13_Attachment_Acc.pdf

ETA Advisory File Text

Questions and Answers Unemployment Insurance and the Federal Government Shutdown 2 A. Exempt and Excepted Federal Employees and Presidential Appointees 1. Question What guidance is available to help Federal furloughed workers and states understand a federal employee s status during a shutdown Answer The Office of Personnel Management has published the guidance for Federal workers regarding the impact of a shutdown at http www.opm.gov policy-data-oversight pay- leave furlough-guidance url Shutdown-Furlough . 2. Question Employees are exempt from furlough if they are not affected by a lapse in appropriations. This includes employees whose salaries are funded with other than annually appropriated funds and continue to be paid during a government shutdown. Are full-time exempt employees eligible for UCFE benefits Answer No. Employees are exempt from furlough if they are not affected by a lapse in appropriations. These employees will continue to work and be paid. 3. Question Are full-time excepted employees eligible for UCFE benefits Answer Employees are excepted if their salaries are funded through annual appropriations but are nonetheless excepted from furlough because they are performing work that may continue to be performed during a lapse in appropriations. Excepted employees who remain on their jobs on a full-time basis are generally not eligible for unemployment benefits because states may determine that they are still fully employed. Excepted workers will not be paid for their work until Congress appropriates the funds. 4. Question Are excepted intermittent employees eligible for UCFE benefits Answer Excepted intermittent employees are similar to excepted employees except that they are called in to work on an as-needed basis. Individuals classified as Excepted Intermittent employees are generally working less than full-time and may not be working at all. Therefore they may be eligible for partial or full UCFE benefits depending on the hours of work or the amount of wages earned during the week. These employees will not be paid for their excepted work until Congress appropriates the funds. 5. Question What about employees who are neither excepted nor exempt Answer Workers who are not exempt and who are funded through annual appropriations but are not designated as excepted are barred from working during a shutdown except for minimal activities necessary for orderly shutdown. These employees have been furloughed and are eligible for UCFE under the same state requirements and conditions for other laid-off workers. 6. Question Are leave-exempt Presidential appointees eligible for UCFE benefits Answer No. Individuals appointed by the President with or without Senate confirmation who are not covered by the Federal leave system are not subject to furlough. A leave-exempt Presidential appointee cannot be placed on nonduty status. These individuals will continue to be paid during a government shutdown. B. Required Documentation for UCFE Claims 1. Question What documentation is acceptable from furloughed Federal employees as proof of employment and wages for a UCFE claim Answer Normally furloughed Federal employees should provide copies of the Standard Form-8 SF-8 or the Standard Form-50 SF-50 when filing for UCFE. However due to the circumstances involved with the Federal government shutdown many of these employees were not issued either the SF-8 or an SF-50. Further given the very limited Federal human resources staff that is working during the shutdown the processing of the states Request for Wage and Separation Information ES 931 may be delayed. Therefore states are encouraged to have claimants complete an affidavit to establish their employment and wages using earnings and leave statement s W-2 forms furlough notices and or other types of documentation that can establish that the individual is a current Federal employee and has worked and earned sufficient base period wages to qualify for benefits. 2. Question Is there a specific affidavit form that states must use in taking these UCFE claims Answer States may use either the Form ES-935 Claimant s Affidavit of Federal Civilian Service Wages and Reason for Separation or their own affidavit form s in taking the UCFE claim. Form ES-935 can be found at http oui.doleta.gov unemploy . C. Work Search Requirements Question What work search requirements apply to furloughed Federal workers determined to be eligible for UCFE Answer. States should apply the work search provisions in accordance with state law and or policy including waivers of the work search requirements that may apply when a claimant remains work attached but is only temporarily furloughed. The Office of Personnel Management provided the following information to Federal employees in its Guidance for Shutdown Furloughs see Question and Answer under Working during a Furlough - question C.3 in the Guidance for Shutdown Furloughs which mentions requirements that may make it particularly challenging for Federal employees to seek other employment during a furlough period. May employees take other jobs while on furlough 4 A. While on furlough an individual remains an employee of the Federal Government. Therefore executive branch-wide standards of ethical conduct and rules regarding outside employment continue to apply when an individual is furloughed specifically the executive branch-wide standards of ethical conduct the standards at 5 CFR part 2635 . In addition there are specific statutes which prohibit certain outside activities and agency-specific supplemental rules that require prior approval of and sometimes prohibit outside employment. Therefore before engaging in outside employment employees should review these regulations and then consult their agency ethics official to learn if there are any agency-specific supplemental rules governing the employee. D. Furloughed Federal Employees Residing Outside the United States Question Are furloughed Federal employees working outside the U.S at the time of the furlough eligible for Unemployment Compensation for Federal Employees UCFE if they are unable to be physically present to file an unemployment claim in one of the states the District of Columbia Puerto Rico or the Virgin Islands Answer No. Section 20 CFR 609.8 b of Title 20 CFR provides b Assignment of service and wages. 1 An individual s Federal civilian service and Federal wages shall be assigned to the State in which the individual had his or her last official station prior to filing a first claim unless i At the time a first claim is filed the individual resides in another State in which after separation from Federal civilian service the individual performed service covered under the State law in which case all of the individual s Federal civilian service and wages shall be assigned to the latter State or ii Prior to filing a first claim an individual s last official station was outside the States in which case all of the individual s Federal civilian service and Federal wages shall be assigned to the State in which the individual resides at the time the individual files a first claim provided the individual is personally present in a State when the individual files the first claim. We interpret this regulation to require that individuals must be physically present in a state the District of Columbia Puerto Rico or the Virgin Islands in order to file a claim for Unemployment Compensation for Federal Employees. E. Wage Garnishments for Overpayments Question Are states able to require a Federal agency to recover a benefit overpayment through wage garnishment for any employees overpaid UCFE including in the event that a payment that was appropriate at the time paid becomes an overpayment because back pay is granted Answer. Yes. After providing claimants the opportunity for appeal and voluntary reimbursement the state may if state law requires employers to recover overpayments request that a Federal agency garnish wages to recoup any overpayments. In these cases the state should notify the Federal agency in writing of its responsibility to collect the overpaid amount s from the employee see UCFE Handbook No. 391 page V-5 . States are strongly encouraged to remind Federal employee claimants that they will be required to repay unemployment benefits that are paid to them for wages lost during the furlough period that are later repaid. F. Administrative Funding 1. Question Can states continue to pay unemployment benefits if the state no longer has any administrative funding available Answer Yes. States can and are encouraged to use other state resources to pay for the administration of UI program operations to prevent the disruption of UI benefit processing. The Department will advise states as soon as possible about funding available for administrative costs associated with the government shutdown. Additional guidance will be provided to states once the government shutdown ends. 2. Question If a state uses state resources to enable continued administration of the UI program after Federal administration funding for the program is exhausted will the state receive full-year funding once a Federal appropriation for the program is enacted Answer In prior government shutdowns once a Federal appropriation was enacted the appropriation provided for funding of the administration of the UI program to avoid a gap i.e. funding was provided from the point in the fiscal year when the shutdown began . While there is not a guarantee every effort will be made to ensure that funding for state UI administration will be provided as though a lapse in appropriations had not occurred. 3. Question What Federal funding sources should states consider using to enable continued UI program operations in the event the state exhausts all available state UI administrative funding Answer In the event that a state is approaching exhaustion of currently available state administration funding the state should immediately contact Gay Gilbert Administrator Office of Unemployment Insurance at 202-693-3029 or Gilbert.Gay dol.gov . States are encouraged to identify other available funding sources that may be used for administration of the state s UI program such as Reed Act funds other special distributions similar to Reed Act distributions that could be used for state administration of the program and UI Modernization incentive funds. States are also encouraged to consider the use of penalty and interest funds for this purpose. 4. Question Can states use EUC administrative funds to cover administrative costs for the regular UI program Answer. Administration of the EUC program has undoubtedly required some common use of existing physical resources copiers office space phone lines etc. information technology 6 infrastructure and states staff also used for administration of the state regular UI program. States should ensure that costs of these resources used for EUC administration are to the extent possible under the cost allocation principles set forth in OMB circular A-87 charged to EUC administration. In doing so states may help reduce pressure on available UI administrative funds. G. Notification to Claimants If Benefit Payment Are Stopped Due to Lack of Administrative Funds Question If a state must stop paying benefits due to a lapse in administrative funding what if any claimant notification is required Answer States must make every effort to provide individual notification to claimants prior to stopping benefit payments. States are also strongly encouraged to ensure that notification is posted on state Web sites and in various state-wide media announcements. If possible states should accept claims and encourage claimants to continue to certify continued claims for benefits even if payments cannot be issued. This would help to avoid work associated with backdating of claims once the administrative funding issue is resolved.