Stephanie Ferguson
Director, Global Employment Policy & Special Initiatives, U.S. Chamber of Commerce

Published

July 07, 2021

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A White House Fact Sheet released in May reiterated that the “core purpose of the UI program is helping workers get back to work.” We have seen throughout the past few months, however, that enhanced benefits, relaxed work search requirements, and waivers to be able and available to work has left the U.S. in a labor shortage. Following the White House’s statement, and questions regarding unemployment insurance guidance from the Chamber, the Employment and Training Administration (ETA) released UIPL 13-20 Change 3.

The guidance letter clarifies 4 provisions that were included in the Emergency Unemployment Insurance Stabilization and Access Act of 2020 (EUISAA) as they relate to the current labor climate and the progress the U.S. has made on the pandemic response.

Work Search Requirements

Normally, a UI beneficiary must regularly certify their current status in order to prove eligibility and receive a UI payment. The certifications require varying proof of work search. Due to the lockdowns that occurred across the nation, EUISAA allowed states the flexibility to temporarily waive the work search requirement. The guidance reminds states that the waived work search requirement is only available for as long as needed to mitigate the spread of COVID-19. Once the waivers are no longer needed, they must be rescinded. It must be noted that the work search requirement can be modified to apply only to a targeted audience, such as a caretaker of a family member diagnosed with COVID. Additionally, the guidance provides states reemployment services resources to help unemployed workers reenter the labor force.

Unemployment Insurance Waiting Week

Traditionally, States require UI beneficiaries to wait one week before being eligible to receive UI benefits. EUISAA also allowed states to waive the waiting week and the CARES Act provided full federal funding of the first week of UI if states waived the waiting week. The guidance confirms that while having a waiting week is not required under federal law, it is a common practice that affords more time for state workforce agencies to thoroughly determine claimant eligibility and potentially identify fraudulent claims.

Good Cause to Refuse to Return to Work

To be eligible for UI, a claimant must not refuse an offer of suitable work without good cause. During the pandemic, states were able to expand the definition of good cause to practices directly related to the pandemic, such as workplace adherence to the use of face masks, PPE, and social distancing. According to the guidance, states maintain the right to define good cause and may keep or rescind the expansions made regarding COVID-19. Should a state remove COVID-19 related reasons a person can refuse work, then the claimant would no longer be eligible for state UI. However, once a person is not eligible for state UI, the person may become eligible for Pandemic Unemployment Assistance (PUA). UIPL 16-20 Change 5 does provide additional reasons a person may refuse work and still be eligible to collect PUA. Regardless of this small loophole, PUA is set to expire on September 6, 2021.

Employer Experience Rating

Due to the anomalies of businesses’ payrolls in 2020 and 2021, the guidance allows states to use a business’s payroll information from 2017, 2018, and 2019 when calculating the experience rating. Experience ratings directly affect a business’s UI tax rate. This provision will help to ensure businesses are not unfairly taxed for the uncontrollable layoffs that occurred in 2020.

Able and Available for Work Requirement

Like the work search requirement, claimants must certify that they are able and available to work to maintain UI eligibility. This federal requirement applies to state and pandemic UI programs. While states have the authority to define how a claimant meets the able and available to work requirement, the guidance clarifies that requirement “must not limit their ability or availability in such a way that the individuals have withdrawn from the labor market.” Furthermore, the guidance reminds states that exceptions for this rule includes claimants who are part of a state-approved training program or limitations included in laws and regulations. However, COVID-19 related exceptions do not exist in statute.

Finally, the guidance mandates that PUA beneficiaries must certify weekly, under penalty of perjury, that they are able and available to work unless they are unable and unavailable to work for reasons specifically laid out in the CARES Act and subsequent guidance letters.

ETA’s guidance still leaves great discretion in UI requirements to the states, leaving room for ambiguous interpretation. One thing remains clear: unemployment insurance programs are temporary safety nets, meant to help workers get back to work. They must continue to be administered as such.

About the authors

Stephanie Ferguson

Director, Global Employment Policy & Special Initiatives, U.S. Chamber of Commerce