Pandemic Unemployment Insurance Update – Summer 2021

End of Federal Programs and Extended Benefits (EB)

The Relief for Workers Affected by Coronavirus Act, which was enacted on March 27, 2020, as part of the CARES Act, significantly expanded unemployment insurance during the COVID-19 pandemic by increasing the number of weeks of benefits through Pandemic Emergency Unemployment Compensation (PEUC), increasing the amount of benefits through Federal Pandemic Unemployment Compensation (FPUC) and Mixed Earner Unemployment Compensation (MEUC), and covering individuals who would traditionally not be eligible for benefits through Pandemic Unemployment Assistance (PUA).  On December 27, 2020, the Continued Assistance for Unemployed Workers Act of 2020, which extended, with some modifications, the benefits that were available under the Relief for Workers Affected by Coronavirus Act, was enacted.  Finally, on March 11, 2021, the American Rescue Plan Act of 2021, which further extended these benefits, was enacted.

These federal programs ended on September 5, 2021.  However, claimants who were unemployed on or before September 5, 2021 may still be eligible for benefits under these federal programs.  And claimants who were overpaid benefits under these federal programs may still be required to repay them after September 5, 2021.

During periods of high unemployment, states may trigger “on” for Extended Benefits (EB).  EB provides up to 13 or 20 additional weeks of benefits, depending on the state’s unemployment rate.  From July 6, 2020 to August 8, 2021, New York was triggered “on” for up to 20 weeks of Extended Benefits (EB).  From August 9, 2021 to September 5, 2021, New York was triggered “on” for up to 13 weeks of EB.  As of September 6, 2021, New York is triggered “off” for EB.

For days of unemployment on or after September 6, 2021, claimants may be eligible for up to 26 weeks of regular benefits.  A claimant who already had an open claim for regular benefits as of September 6, 2021 can continue to receive regular benefits until they exhaust 26 weeks.  A claimant who exhausted 26 weeks of regular benefits, whose benefit year ended, or who never had an open claim for regular benefits as of September 6, 2021 must open a new claim to receive benefits.

Reinstatement of Waiting Week

Pursuant to section 590(7) of the Labor Law, a claimant’s first week of unemployment after they open a claim for benefits is an unpaid waiting week.

The unpaid waiting week was waived for the duration of the state disaster emergency declared by Executive Order 202, which ended on June 25, 2021.  The Department of Labor announced that, for claims opened on or after June 28, 2021, the unpaid waiting week is reinstated.

Reinstatement of Forfeit Penalties

Pursuant to section 594(1) of the Labor Law, the Department of Labor may impose a forfeit  penalty of 1 to 20 weeks of future benefits for each willful false statement or misrepresentation that a claimant makes to obtain benefits.  Generally, the forfeit penalty is 1 week of future benefits for each willful false statement or misrepresentation that does not result in an overpayment of benefits, 2 weeks of future benefits for each willful false statement or misrepresentation that results in an overpayment of benefits, and 20 weeks of future benefits for each willful false statement or misrepresentation that constitutes “flagrant fraud.”

Forfeit penalties were suspended for the duration of the state disaster emergency declared by Executive Order 202, which ended on June 25, 2021.  The Department of Labor announced that, as of July 4, 2021, forfeit penalties are reinstated.

Partial Unemployment

On July 16, 2021, the unemployment insurance law was amended to include new rules for partial unemployment.  These amendments to the unemployment insurance law replaced emergency rules that the Department of Labor had already implemented beginning January 18, 2021.  Eligibility is determined weekly (Monday to Sunday) based on the rules that were in effect for a given week, regardless of when the determination is made.

The old rules, which apply to days of unemployment before January 18, 2021, are based on days of work and whether the claimant earned more than the maximum weekly benefit rate, as shown in the table below.  Any activity that brings in or may bring in income at any time, even an hour or less, counts as a day of work (e.g., an hour of work on Monday and an hour of work on Tuesday counts as 2 days of work).

The emergency rules, which apply to days of unemployment from January 18, 2021 to August 15, 2021, are based on hours of work and whether the claimant earned more than the maximum weekly benefit rate.  Essentially, hours of work are converted to days of work to determine eligibility under the old rules, as shown in the table below.

The amendments to the unemployment insurance law provide for transitional rules, which apply to days of unemployment from August 16, 2021 to April 1, 2022 (or 30 days after the Department of Labor is ready for the final rules, whichever is earlier), are based on hours of work and whether the claimant earned more than the maximum weekly benefit rate.  These rules are essentially a modified version of the emergency rules, as shown in the table below.  Only the first 10 hours of work per day count.

The final rules under the amendments to the unemployment insurance law, which apply to days of unemployment on or after April 1, 2022 (or 30 days after the Department of Labor is ready, whichever is earlier), are based on earnings, as shown in the table below.  These rules are based on a “partial benefit credit,” which means that a claimant’s earnings from part-time work up to 50% of their weekly benefit rate will not affect their eligibility for benefits.  In effect, these rules permit a claimant to receive up to 150% of their weekly benefit rate through a combination of unemployment insurance benefits and earnings from part-time work.

Regardless of which rules apply, claimants must count days, hours, and/or earnings from all work when certifying for benefits.  Claimants who have (or had) multiple jobs cannot claim benefits for one job and exclude the other(s) when certifying for benefits.