On March 18, 2020, we wrote about the availability of unemployment benefits to Massachusetts employees out of work due to the COVID-19 pandemic. We noted that, based on guidance published by the Executive Office of Labor and Workforce Development and the Department of Unemployment Assistance (“DUA”), employees are now eligible to collect unemployment if (1) they are quarantined due to an order by a civil authority or medical professional; (2) they leave their employment due to a reasonable risk of exposure or infection or to care for a family member and either do not intend or are not allowed to return to work; or (3) their workplace has shut down because of the COVID-19 emergency, but is expected to reopen within eight weeks.
Since then, the DUA has published emergency regulations and FAQs about the latter category of benefits, related to business shutdowns. Additionally, the federal government passed the Coronavirus Aid, Relief and Economic Security (CARES) Act, which expands the availability of unemployment benefits across the country. Here’s a breakdown about how these new laws will affect Massachusetts employers.
Most importantly, the DUA’s emergency regulations do not require a claimant’s employer to have shut down in order for the employee to collect unemployment. In fact, the regulations do not refer to a “shutdown” at all. Instead, the DUA has created a new category of eligibility for unemployment – “standby status.” Specifically, a claimant may collect unemployment if he or she is “temporarily unemployed because of a lack of work due to COVID 19, with an expected return-to-work date.”
When a claimant applies for unemployment based on “standby status,” the DUA will reach out to the employer to confirm that the employee is out of work due to the coronavirus and obtain the employee’s expected return-to-work date. If an employer fails to respond, the claimant will be placed on standby status for four weeks. If the employer responds and confirms the employee’s claim, the employee will be placed on standby status until the return-to-work date or for four weeks, whichever is shorter. An employer may request that the employee be placed on standby status for up to eight weeks and the request will be granted if the DUA deems it reasonable. It is unclear what the DUA will consider to be a reasonable basis for such a request, but the duration of Governor Baker’s state of emergency, the statewide shutdown of non-essential businesses, and financial considerations presumably will be factors. No further extension of an employee’s “standby status” will be available unless a COVID-19 infection at the employer’s workplace requires the employer to close or “severely curtail operations” for longer than eight weeks.
A claimant on standby status need not search for other employment, but must maintain contact with his employer and be available for “suitable work” offered by the employer. Importantly, work will not be considered “suitable” if it would create a “substantial risk to the claimant’s health or safety.” Such a risk may exist if the employee is quarantined, self-quarantined due to a reasonable fear of exposure, or is caring for a family member who is sick or a child who is at home.
The emergency regulations make two other important changes. First, they permit the DUA to excuse missed deadlines during the processing of a claim, such as responding to fact finding questionnaires and requesting an appeal, if the reason for failing to meet the deadline is due to COVID-19. In the case of an employer, its business operations must have been “severely impacted by COVID-19.” Second, they permit the DUA to grant an employer that has been “directly affected by COVID-19” an extension of up to 60 days to file quarterly wage reports and pay contributions. Such extension must be requested in writing, and must be received within 60 days of the original due date.
Here are the key takeaways for employers:
- Employees who have been placed on temporary leave or furlough due to the pandemic are eligible to collect unemployment for up to eight weeks even if their employer has not shut down their workplace.
- Employers who expect employees to be out of work for longer than four weeks must be sure to respond to the DUA request for confirmation of standby status and provide an anticipated return-to-work date – if they do not, the claimant’s eligibility for benefits may be limited to just four weeks.
- Employers should make sure to maintain regular contact with those employees who are out of work due to the virus, and offer suitable work to them whenever it becomes available.
- Employers who anticipate difficulty meeting DUA deadlines due to the pandemic must make sure to submit a timely written request for an extension.
How does the federal CARES Act fit into this new scheme? Essentially, by increasing the amount and duration of unemployment benefits employees will receive. In particular, the statute provides that individuals who are collecting unemployment compensation will receive an additional $600 in federal benefits per week for any weeks of unemployment ending on or before July 31, 2020. In Massachusetts, the additional benefits will be added to existing and new claims automatically, retroactive to March 29, 2020. The CARES Act also allows those who have exhausted benefits under regular unemployment compensation or other programs to receive up to 13 weeks of additional benefits through December 31, 2020. The DUA is awaiting additional federal guidance on this part of the law, so this benefit has not yet been implemented in Massachusetts. Finally, the CARES Act creates a federal unemployment scheme for workers who are out of work due to COVID-19 but are not eligible for unemployment under their states’ unemployment laws, including the self-employed, independent contractors, workers in the so-called “gig economy” and others. Benefits will be payable for up to 39 weeks, retroactive to February 2, 2020, and no later than December 26, 2020. Massachusetts workers who may be eligible for these benefits will have to submit their claim via a separate online platform. That platform is in the works and is expected to be operational by April 30, 2020.
Skoler Abbott continues to monitor all state and federal legislative and executive developments related to the COVID-19 crisis, and we will continue to publish updates on our blogs and in our COVID-19 Resources site. Those who have questions related to the emergency should feel free to contact us. We stand ready to help employers navigate this situation in any way that we can.