Finalize waiver for jobless benefits that were 'overpaid' through no fault of the unemployed

FOOD FOR THE COMMUNITY: Salvation Army social worker Sarah Robart puts together a food bag at The Salvation Army in Tiyan on Tuesday afternoon. Many workers displaced by COVID-19 are seeking help with food from the Salvation Army Guam Corps pantry. Norman M. Taruc/The Guam Daily Post 

The government of Guam will be given 100% federal reimbursement for the jobless benefits GovGuam will issue to workers who have been displaced by the COVID-19 economic downturn or whose jobs vanished because of the crisis.

The reimbursement and other details, such as a requirement that GovGuam must issue a decision "promptly" to applicants of jobless benefits, are stated in the U.S. Department of Labor's guidance to states and territorial governments implementing the unemployment assistance as part of the newly enacted CARES Act.

GovGuam has yet to announce where – and how – jobless workers are to submit applications for the Pandemic Unemployment Assistance program.

The U.S. Labor Department's guidance states the following are among eligible displaced workers:

ELIGIBILITY

Section 2102 of the CARES Act provides for payment of PUA to “covered individuals”.

“Covered individuals” are those individuals not qualified for regular unemployment compensation, extended benefits under state or federal law, or pandemic emergency unemployment compensation (PEUC), including those who have exhausted all rights to such benefits. “Covered individuals” also include self-employed, individuals seeking part-time employment, individuals lacking sufficient work history, or those otherwise not qualified for regular UC, extended benefits under state or federal law, or PEUC.

For purposes of Pandemic Unemplyment Assistance or PUA coverage, an individual “lacking sufficient work history” means an individual (1) with a recent attachment to the labor force (2) who does not have sufficient wages in covered employment during the last 18 months to establish a claim under regular UC, and (3) who became unemployed or partially unemployed because of one of the COVID-19 related reasons identified under Section 2102. Demonstration of a recent attachment to the labor force for PUA coverage purposes also includes individuals who had a bona fide offer to start working on a specific date and were unable to start due to one of the COVID-19 related reasons identified under Section 2102.

“Self-employed individuals” as defined in 20 C.F.R 625.2(n) means individuals whose primary reliance for income is on the performance of services in the individual’s own business, or on the individual’s own farm. These individuals include independent contractors, gig economy workers, and workers for certain religious entities.

PUA is generally not payable to individuals who have the ability to telework with pay, or who are receiving paid sick leave or other paid leave benefits.

Thus, PUA claims may be backdated to February 2, 2020, the first week of the Pandemic Assistance Period (PAP), if the individual otherwise meets the eligibility requirements to receive PUA as of that date, including the requirement that the individual’s unemployment was due to the COVID-19 related reasons listed in section C.1.

States may not make PUA payments with respect to weeks of unemployment ending after December 31, 2020.

The total number of weeks in which a covered individual may receive PUA may not exceed 39 weeks and such total must include any week for which a covered individual received regular compensation or extended benefits under any state or federal law.

a. Determination of Initial Claim. When an individual files an initial claim for PUA the state agency must determine promptly the eligibility of the individual and, if eligible, the weekly and maximum amounts of PUA payable. If denied PUA, the individual must be issued an appealable determination. b. Determination of Weekly Claims. The state agency must promptly, upon the filing of a claim for a payment of PUA for a week of unemployment, determine whether the individual is entitled to a payment of PUA for such week, and, if entitled, the amount of PUA to which the individual is entitled to and issue a prompt payment. c. Redetermination. An individual filing a PUA initial claim or weekly certification has the same rights to request a reconsideration of a determination as are provided for in the applicable state law for regular compensation. d. Notices to Individual. The state agency must give written notice to the individual of any determination or redetermination of an initial claim and all weekly claims. Each notice must include such information regarding rights to reconsideration or appeal, or both, using the same process that is used for redeterminations of regular compensation. e. Promptness. Full payment of PUA when due must be made as soon as administratively feasible. f. Secretary’s Determination Standard. The procedures for making determinations and redeterminations and furnishing written notices of determinations, redeterminations, and rights of appeal to individuals claiming PUA must be consistent with the Secretary’s “Standard for Claim Determinations—Separation I-12 Information" (Employment Security Manual (ESM), Part V, sections 6010 et seq.). In processing claims, states must comply with section 6013 of the ESM about conducting an investigation and section 6014 of the ESM concerning gathering separation information from employers when the claim involves separation from an employer.

DETAILS ON WHO ARE COVERED

U.S. Labor outlines the following on who are covered:

To be a “covered individual” under PUA, an individual must also self-certify that he or she is otherwise able to work and available for work, as provided under state law, except that the individual is unemployed, partially unemployed, unable to work or unavailable for work due to at least one of the following categories described below. Included for each of the categories are illustrative examples and explanations of circumstances that fall I-4 under each category.

These examples and explanations for each of the categories are not an exhaustive list of all COVID-19 related circumstances that may qualify an individual for PUA benefits, however, should other qualifying circumstances be used they must be identified and applied in a manner consistent with the examples below.

The individual has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19 and is seeking a medical diagnosis. Examples may include:

• An individual who has to quit his or her job as a direct result of COVID-19 because the individual has tested positive for the coronavirus or has been diagnosed with COVID-19 by a qualified medical professional, and continuing work activities, such as through telework, is not possible by virtue of such diagnosis or condition;

• An individual who has to quit his or her job due to coming in direct contact with someone who has tested positive for the coronavirus or has been diagnosed by a medical professional as having COVID-19, and, on the advice of a qualified medical health professional is required to resign from his or her position in order to quarantine.

• A member of the individual’s household has been diagnosed with COVID-19. For example:

• A member of the individual’s household has been diagnosed as having COVID-19 by a qualified medical professional or a member of the individual’s household has tested positive for COVID-19 and the individual is unable to work as a result. c) The individual is providing care for a family member or a member of the individual’s household who has been diagnosed with COVID-19. For example:

• An individual is “providing care” for a family member or a member of the individual’s household if the provision of care requires such ongoing and constant attention that the individual’s ability to perform other work functions is severely limited. An individual who is assisting a family member who is able to adequately care for him or herself is not “providing care” under this category.

• A child or other person in the household for which the individual has primary caregiving responsibility 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.  

• An individual has “primary caregiving responsibility” for a child or other person in the household if he or she is required to remain at home to care for the child or other person. This includes an individual whose job allows for telework, but for whom the provision of care to the child or other person with a closed school or other I-5 facility requires such ongoing and constant attention that it is not possible for the individual to perform work at home.

• An individual is unable to reach the place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency. For example:

• An individual who is unable to reach his or her place of employment because doing so would require the violation of a state or municipal order restricting travel that was instituted to combat the spread of COVID-19.

• An individual is unable to reach the place of employment because the individual has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. Examples include:

• An individual who has been advised by a qualified medical professional that he or she may be infected with the coronavirus and that he or she therefore should self-quarantine. For example, an individual had direct contact with another person who has tested positive for the coronavirus or been diagnosed with COVID-19 by a qualified medical professional, and is advised by a health care provider to self-quarantine to prevent further possible spread of the virus. Such circumstances would render the individual unable to reach his or her place of employment.

• An individual whose immune system is compromised by virtue of a serious health condition and is therefore advised by a health care provider to self-quarantine in order to avoid the greater-than-average health risks that the individual might face if he or she were to become infected by the coronavirus.

• An individual was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of the COVID-19 public health emergency.  

• An individual is unable to reach his or her job because doing so would require the violation of a state or municipal order restricting travel that was instituted to combat the spread of the coronavirus or the employer has closed the place of employment.

• An individual does not have a job because the employer with whom the individual was scheduled to commence employment has rescinded the job offer as a direct result of the COVID-19 public health emergency. 

• An individual has become the breadwinner or major support for a household because the head of the household has died as a direct result of COVID-19. For example:

• An individual whose head of household previously contributed the majority of financial support to the household died as a direct result of COVID-19, and the individual is now the person in the household expected to provide such financial support.

• If a business is shut down due to an emergency declaration or due to necessary social distancing protocols, the unemployment of individuals who worked in the business would be considered a direct result of COVID-19. The individual meets any additional criteria established by the Secretary for unemployment assistance under this section.

• The Secretary has determined that, in addition to individuals who qualify for benefits under the other criteria described above, an individual who works as an independent contractor with reportable income may also qualify for PUA benefits if he or she is unemployed, partially employed, or unable or unavailable to work because the COVID-19 public health emergency has severely limited his or her ability to continue performing his or her customary work activities, and has thereby forced the individual to suspend such activities. For example, a driver for a ridesharing service who receives an IRS Form 1099 from the ride-sharing service may not be eligible for PUA benefits under the other criteria outlined above, because such an individual does not have a “place of employment,” and thus cannot claim that he or she is unable to work because his or her place of employment has closed. However, under the additional eligibility criterion established by the Secretary here, the driver may still qualify for PUA benefits if he or she has been forced to suspend operations as a direct result of the COVID19 public health emergency, such as if an emergency state or municipal order restricting movement makes continued operations unsustainable.

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