Author Archives: Jacob Korder

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.

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, increasing the amount of benefits, and covering individuals who would traditionally not be eligible for benefits.  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.  Those extensions were scheduled to end on March 14, 2021 (with a phaseout through April 11, 2021 for some claimants).  The American Rescue Plan Act of 2021, which was enacted on March 11, 2021, further extends these benefits.

Pandemic Emergency Unemployment Compensation (PEUC)

Pandemic Emergency Unemployment Compensation (PEUC) provided an additional 13 weeks of benefits to claimants with a benefit year ending on or after July 1, 2019 who exhausted their regular benefits from March 30, 2020 to December 27, 2020.

The Continued Assistance for Unemployed Workers Act of 2020 extended PEUC to March 14, 2021 with a phaseout through April 11, 2021 (for claimants receiving PEUC during the week ending March 14, 2021).  It also increased the number of weeks of PEUC from 13 to 24, with the additional 11 weeks available beginning December 28, 2020.

The American Rescue Plan Act of 2021 further extends PEUC to September 5, 2021 (with no phaseout) and increases the number of weeks of PEUC from 24 to 53, with the additional 29 weeks available beginning March 15, 2021.

Federal Pandemic Unemployment Compensation (FPUC)

Federal Pandemic Unemployment Compensation (FPUC) provided an additional $600 of benefits per week from March 30, 2020 to July 26, 2020.  The Continued Assistance for Unemployed Workers Act of 2020 reinstated FPUC—at a reduced amount of $300 per week—from December 28, 2020 to March 14, 2021.  FPUC is not available for weeks during the gap from July 27, 2020 to December 27, 2020, and there is no phaseout for FPUC.

The American Rescue Plan Act of 2021 further extends FPUC to September 5, 2021 (with no phaseout)—still at the reduced amount of $300 per week.

Pandemic Unemployment Assistance (PUA)

Pandemic Unemployment Assistance (PUA) provided benefits to individuals who were not otherwise eligible for benefits and unemployed, partially unemployed, or unable to work because of the COVID-19 pandemic.  PUA was available from January 27, 2020 (backdated) to December 27, 2020.  Initially, PUA was available for 39 weeks (i.e., the equivalent of 26 weeks of regular benefits plus 13 weeks of PEUC).  Once New York triggered “on” for an additional 7 weeks of extended benefits (EB), the number of weeks of PUA increased by an equivalent amount to 46.

The Continued Assistance for Unemployed Workers Act of 2020 extended PUA to March 14, 2021 with backdating to December 1, 2020 (for claims opened on or after December 28, 2020) and a phaseout through April 11, 2021 (for claimants receiving PUA during the week ending March 14, 2021).  It also increased the number of weeks of PUA from 39 to 50, with the additional 11 weeks available beginning December 28, 2020.  Because New York was triggered “on” for an additional 7 weeks of EB, the number of weeks of PUA increased by an equivalent amount to 57.

The American Rescue Plan Act of 2021 further extends PUA to September 5, 2021 (with no phaseout) and increases the number of weeks of PUA from 50 to 79, with the additional 29 weeks available beginning March 15, 2021.  As long as New York is triggered “on” for an additional 7 weeks of EB, the number of weeks of PUA increases by an equivalent amount to 86.

Progression, Duration, and Amount of Benefits

Generally, a claimant must exhaust regular benefits to be eligible for PEUC and exhaust PEUC to be eligible for EB (except for claimants who began receiving EB before PEUC was extended).  A claimant must exhaust all other benefits (and be unemployed, partially unemployed, or unable to work because of the COVID-19 pandemic) to be eligible for PUA.  FPUC is available to any claimant who is otherwise eligible for one of the other benefits.

The table below summarizes the benefits that are available for specific dates of unemployment.  The number of weeks of benefits in each cell is the cumulative total that is available as of that date (although a claimant whose benefit year has ended may be able to open a new claim for up to 26 weeks of regular benefits).

In New York, the minimum weekly benefit rate (excluding FPUC) for regular benefits, PEUC, and EB is $108.  The minimum weekly benefit rate (excluding FPUC) for PUA changes each quarter and is currently $173.  The maximum weekly benefit rate (excluding FPUC) for all benefits is $504.

[1] Mixed Earners Unemployment Compensation (MEUC), a new benefit under the Continued Assistance for Unemployed Workers Act of 2020, provided an additional $100 of benefits per week (in addition to FPUC) for claimants who had at least $5,000 of self-employment income in the most recent tax year before they opened their claim for benefits and are receiving benefits other than PUA from December 28, 2020 to March 14, 2021.  The American Rescue Plan Act of 2021 extends MEUC to September 5, 2021.

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, increasing the amount of benefits, and covering individuals who would traditionally not be eligible for benefits.  On December 27, 2020, the date that the benefits available under the Relief for Workers Affected by Coronavirus Act would otherwise have ended, the Continued Assistance for Unemployed Workers Act of 2020 was enacted.  The Continued Assistance for Unemployed Workers Act of 2020 extends, with some modifications, the benefits that were available under the Relief for Workers Affected by Coronavirus Act, supplementing the regular benefits and extended benefits that are available under New York law.

Pandemic Emergency Unemployment Compensation (PEUC)

Pandemic Emergency Unemployment Compensation (PEUC) provided an additional 13 weeks of benefits to claimants with a benefit year ending on or after July 1, 2019 who exhausted their regular benefits from March 30, 2020 to December 27, 2020.

The Continued Assistance for Unemployed Workers Act of 2020 extends PEUC to March 14, 2021 with a phaseout through April 11, 2021 (for claimants receiving PEUC during the week ending March 14, 2021).  It also increases the number of weeks of PEUC from 13 to 24, with the additional 11 weeks available beginning December 28, 2020.

Federal Pandemic Unemployment Compensation (FPUC)

Federal Pandemic Unemployment Compensation (FPUC) provided an additional $600 of benefits per week from March 30, 2020 to July 26, 2020.  The Continued Assistance for Unemployed Workers Act of 2020 reinstates FPUC—at a reduced amount of $300 per week—from December 28, 2020 to March 14, 2021.  FPUC is not available for weeks during the gap from July 27, 2020 to December 27, 2020, and there is no phaseout for FPUC.

Extended Benefits (EB)

During periods of high unemployment, states may trigger “on” for Extended Benefits (EB).  EB provides an additional 13 or 20 weeks of benefits, depending on the state’s unemployment rate.  Generally, a claimant must have exhausted regular benefits and PEUC to be eligible for EB (although the Continued Assistance for Unemployed Workers Act of 2020 makes an exception for claimants who began receiving EB before PEUC was extended).  Since July 6, 2020, New York has been triggered “on” for 20 weeks of EB.  (Because July 6, 2020 is the earliest date that a claimant could have exhausted 13 weeks of PEUC, it is also the earliest date that a claimant could have been eligible for EB.)  It is unknown when New York will trigger “off” for EB because it depends on the state’s unemployment rate.

Pandemic Unemployment Assistance (PUA)

Pandemic Unemployment Assistance (PUA) provided benefits to individuals who were not otherwise eligible for benefits and unemployed, partially unemployed, or unable to work because of the COVID-19 pandemic.  PUA was available from January 27, 2020 (backdated) to December 27, 2020.  Initially, PUA was available for 39 weeks (i.e., the equivalent of 26 weeks of regular benefits plus 13 weeks of PEUC).  Once New York triggered “on” for an additional 7 weeks of EB, the number of weeks of PUA increased by an equivalent amount to 46.

The Continued Assistance for Unemployed Workers Act of 2020 extends PUA to March 14, 2021 with backdating to December 1, 2020 (for claims opened on or after December 28, 2020) and a phaseout through April 11, 2021 (for claimants receiving PUA during the week ending March 14, 2021).  It also increases the number of weeks of PUA from 39 to 50, with the additional 11 weeks available beginning December 28, 2020.  As long as New York is triggered “on” for an additional 7 weeks of EB, the number of weeks of PUA increases by an equivalent amount to 57.

Mixed Earners Unemployment Compensation (MEUC)

Mixed Earners Unemployment Compensation (MEUC), a new benefit under the Continued Assistance for Unemployed Workers Act of 2020, provides an additional $100 of benefits per week (in addition to FPUC) for claimants who had at least $5,000 of self-employment income in the most recent tax year before they opened their claim for benefits and are receiving benefits other than PUA.  MEUC is available from December 28, 2020 to March 14, 2021, and there is no phaseout.  In effect, MEUC compensates claimants who are ineligible for PUA at a higher weekly benefit rate based on their earnings from self-employment because they have a comparatively small amount of earnings from traditional employment (enough to open a claim for regular benefits, thereby making them ineligible for PUA, but at a lower weekly benefit rate).

Lost Wages Assistance (LWA)

Lost Wages Assistance (LWA), which was authorized by the President on August 8, 2020, provided an additional $300 of benefits per week from July 27, 2020 to September 6, 2020.  LWA was funded by emergency assistance funding through FEMA.  Claimants who opened their claims before December 27, 2020 could still be eligible for LWA retroactively and/or could still receive determinations of recoverable overpayments of LWA.  LWA is not available for claims opened on or after December 27, 2020.

Partial Unemployment

Beginning January 18, 2021, the Governor has directed the Department of Labor to implement new partial unemployment rules on an emergency basis.  Under the new partial unemployment rules, claimants who work 30 or fewer hours per week and earn less than $504 will be eligible for partial benefits.  Specifically, claimants who work between 0 and 4 hours will receive their full weekly benefit rate, claimants who work between 4 and 10 hours will receive three-quarters of their weekly benefit rate, claimants who work between 10 and 20 hours will receive one-half of their weekly benefit rate, and claimants who work between 20 and 30 hours will receive one-quarter of their weekly benefit rate.  Claimants who work more than 30 hours, regardless of how much they earn, are not eligible for benefits.  Claimants who earn more than $504, regardless of how many hours they work, are not eligible for benefits.

Before January 18, 2021—and under New York law in its current form—eligibility for benefits is based on days, not hours, of work.  Claimants who work 1, 2, or 3 days and earn less than $504 are eligible for three-quarters, one-half, and one-quarter of their weekly benefit rate, respectively.  Claimants who work 4 or more days or earn more than $504, regardless of how many days they work, are not eligible for benefits.  Any work on a day—even an hour or less—counts as a day of work.  The Governor and others have introduced legislation to make the new partial unemployment rules permanent.

Overpayments and Waivers

Benefits that a claimant receives for which they were not eligible constitute an overpayment.  Pursuant to section 597(4) of the Labor Law, which applies to regular benefits and EB, overpaid benefits are recoverable unless “they were accepted by the claimant in good faith and the claimant did not make any false statement or representation and did not wilfully conceal any pertinent fact in connection with his or her claim for benefits.”  In effect, this means that a claimant who is completely truthful to the Department of Labor and receives benefits that they should not have received—perhaps because of a mere error by the Department of Labor or because the Department of Labor’s determination of eligibility is later overruled by a judge—should not need to repay them.

Section 597(4) of the Labor Law does not apply to PEUC, FPUC, PUA, or LWA.  Generally, states are required to recover overpayments of PEUC, FPUC, PUA, and LWA, regardless of the reason for the overpayment.  Reportedly, as the state worked to clear the backlog of claims at the beginning of the COVID-19 pandemic, the Department of Labor hired inexperienced representatives with limited training and hastily released benefits to claimants who were completely truthful but ineligible.  Such claimants are now receiving determinations of recoverable overpayments for the federal benefits (PEUC, FPUC, PUA, and LWA) but not the state benefits (regular benefits and EB)—an implicit acknowledgement by the Department of Labor that the claimant was not at fault for the overpayment.

The Relief for Workers Affected by Coronavirus Act permits states to waive recovery of overpayments of PEUC and FPUC where the overpayment “was without fault on the part of” the claimant, and “repayment would be contrary to equity and good conscience.”  The Continued Assistance for Unemployed Workers Act of 2020 permits states to waive recovery of overpayments of PUA and LWA for the same reasons.  The Department of Labor has yet to publish any official procedure for requesting waivers.  Until it does, it is advisable for claimants to request hearings on the determinations of recoverable overpayment and request waivers in their hearing requests.  The first element for a waiver—that the overpayment “was without fault on the part of” the claimant—is fact-specific but, in most cases, is essentially the same as the standard in section 597(4) of the Labor Law.  In the past, the Unemployment Insurance Appeal Board has interpreted “contrary to equity and good conscience” in federal statutes (most recently during the 2007-2008 financial crisis) to mean that repayment would cause the claimant to go without food, shelter, or medicine for a period of 30 days or more.

Foreign Travel

The Department of Labor has long taken the position, with approval from the Unemployment Insurance Appeal Board and the court, that a claimant who is outside of a jurisdiction that is a signatory to the Interstate Benefits Payment Plan (effectively the United States and Canada) is unable to comply with reporting requirements and therefore, ineligible for benefits, regardless of the reason for the foreign travel and the claimant’s readiness, willingness, and ability to work.  Many claimants—particularly those who were stranded abroad due to travel restrictions or would be searching for remote work, regardless of their physical location—hoped that an exception would be made for the extraordinary circumstances of COVID-19.  However, the Department of Labor has adhered to its longstanding position, and in recent decisions, the Unemployment Insurance Appeal Board sustained the Department of Labor’s determinations.  For example, in Appeal Board Case No. 612492, dated December 7, 2020, the Board held, “It is well established that a claimant who is outside of a jurisdiction which is part of the Interstate Benefits Payment Plan (“the Plan”) is neither available for work, nor able to comply with reporting requirements . . . As a matter of law, the claimant cannot receive benefits while in a country not a signatory to the Plan.  . . . The law does not provide otherwise due to an inability to return to the Unites States due to lockdown of a country due to COVID-19.”  Accordingly, any change to this rule would require legislation.

Since the onset of the COVID-19 public health emergency and the enactment of the CARES Act, questions continue to arise about eligibility for unemployment insurance benefits, especially as it relates to Paycheck Protection Program (PPP) loans.  While there is virtually no precedent under the New York unemployment insurance law for the unique circumstances of COVID-19, the existing statute, regulations, and case law provide some guidance.

PPP Loan Forgiveness

To be eligible for PPP loan forgiveness, employers must maintain (or restore) staff and payroll for the 8-week period following disbursement of the loan.  Accordingly, many employers who are receiving PPP loans are now demanding that employees who were laid off or furloughed indefinitely return to work.  Some are threatening that an employee’s failure to return to work will cause them to be ineligible for unemployment insurance benefits and requiring employees who do not return to work to submit resignation letters.

Employers are incentivized to get their employees to return to work both for PPP loan forgiveness and because employers’ experience-rating accounts continue to be charged for regular benefits (but not PUC, PEUC, or PUA).  But there are multiple reasons for employers not to be overzealous.  First, according to the PPP guidance, employees who reject “a good faith, written offer of rehire” will not count against employers in calculating the amount of loan forgiveness.  Second, only the Department of Labor (or, on appeal, the Unemployment Insurance Appeal Board or the court) has the right to determine a claimant’s eligibility for benefits (which cannot be denied by the employer or waived by the claimant).  Finally, it is unlawful for an employer to discharge, threaten, penalize, or in any other manner discriminate or retaliate against an employee for engaging in protected activity under the Labor Law, which arguably includes applying for unemployment insurance benefits.

PPP Loans and Total Unemployment

Recipients of PPP Loans

Recipients of PPP loans—especially sole proprietors and independent contractors without employees—may be claiming unemployment insurance benefits.  There is not yet any official guidance on the relationship between PPP loans and unemployment insurance.  Unlike wages that are paid to employees from the proceeds of PPP loans, the PPP loans themselves are not remuneration because they are not compensation for employment.  Nonetheless, a claimant who stands to gain financially from the continued operation of a business is not totally unemployed, even on days on which they perform no services or receive no compensation.  (For starting up/winding down businesses, spouse/family businesses, and part-time/sideline businesses, a claimant’s ineligibility may be limited to days on which they actually perform services.)  Notably, the PPP application requires certification that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant,” and “[t]he funds will be used to retain workers and maintain payroll or make mortgage interest payments, lease payments, and utility payments.”  Thus, an application for a PPP loan could be treated as work, and receipt of a PPP loan could be treated as financial gain from the continued operation of a business.  Some independent contractors, freelancers, and gig workers may be self-employed for the purpose of PPP loans but not actually in business for themselves for the purpose of unemployment insurance.

Return of Employees to Work

An employee who returns to work (or continues to work) after their employer receives a PPP loan is subject to the normal rules of total unemployment under the New York unemployment insurance law.  A claimant who works 4 or more days in a week, regardless of how much they earn, is not eligible for benefits for that week.  A claimant who earns more than the maximum weekly benefit rate (currently $504) for a week, regardless of how many days they worked, is not eligible for benefits for that week. A claimant who works fewer than 4 days and earns less than the maximum weekly benefit rate may be eligible for partial benefits.  A claimant is either totally unemployed or not totally unemployed on a day, as defined in the statute; the amount of any reduction in the claimant’s wages and/or hours is not relevant.  A claimant who  becomes unemployed again after returning to work for a nondisqualifying reason—e.g., the claimant is laid off after the 8-week period covered by a PPP loan—can resume claiming benefits, assuming they are otherwise eligible.

Restoration of Employees to Payroll

The outcome for an employee who is restored to payroll after being laid off or furloughed indefinitely but does not perform any services is less clear.  On one hand an employee who remains on payroll and continues to receive their salary and benefits, even if they do not perform any services, is not totally unemployed because an employment relationship exists.  On the other hand, an employee who does not perform any services may be totally unemployed despite receiving compensation from the employer.  A claimant who does not perform any services can truthfully certify that they worked zero days.  Nonetheless, those who claim benefits while receiving compensation from their (former) employers do so at their own risk, especially given that the compensation will presumably be treated as remuneration on paper.

Offers to Return (or Continue) to Work

Disqualification for Voluntary Leaving or Refusal of Employment

A claimant who voluntarily leaves employment without good cause or refuses employment without good cause is disqualified from receiving regular benefits and/or PEUC and must earn at least 10 times their weekly benefit rate in subsequent covered employment to break the disqualification.  An employee’s rejection of an offer to return to work after being laid off or furloughed indefinitely would probably be treated as a refusal of employment, rather than a voluntary leaving of employment.  A voluntary leaving of employment presumes that there is continuing work available; an employee who has been laid off or furloughed indefinitely cannot voluntarily leave employment that they do not have.  Conversely, an employee who is laid off or furloughed with a definite date to return to work has continuing work available, and the employment relationship continues.

Refusal of Employment During First 10 Weeks of Benefits

During the first 10 weeks of benefits, a claimant generally must accept any employment “for which he or she is reasonably fitted by training and experience.” Nonetheless, a claimant has good cause to refuse employment where “the wages or compensation or hours or conditions offered are substantially less favorable to the claimant than those prevailing for similar work in the locality, or are such as tend to depress wages or working conditions,” which the Department of Labor interprets to mean less than 90% of the prevailing wage (the UI cutoff wage).  If the offered wage is less than the UI cutoff wage, the claimant’s previous acceptance of the wage is irrelevant.  Conversely, if the offered wage is greater than or equal to the UI cutoff wage, the fact that it is less than what the claimant previously earned is irrelevant.  A claimant’s desire for permanent full-time employment does not constitute good cause to refuse temporary employment.

Refusal of Employment After First 10 Weeks of Benefits

After the first 10 weeks of benefits, a claimant generally must accept any employment that they are capable of performing, provided that the wage is at least 80% of the high calendar quarter wages in their base period.  Notably, the 80% threshold does not apply to an offer of employment for which the claimant “is reasonably fitted by training and experience.”

Bona Fide Offer of Employment

Before a claimant can be disqualified for refusal of employment, there must be a bona fide offer of employment.  A bona fide offer of employment includes, at a minimum, a start date, salary, location, and job duties.  Salary, location, and job duties may be inferred from the claimant’s previous employment with the employer.  A bona fide offer of employment must be definite and unconditional.

Good Cause to Voluntarily Leave Employment

Where there is continuing work available, a claimant may have good cause to voluntarily leave their employment for a “compelling family reason” or “if circumstances have developed in the course of such employment that would have justified the claimant in refusing such employment in the first instance,” as defined in section 593 of the Labor Law.  A “substantial change in the terms and conditions of employment,” which includes a reduction in earnings of more than 10%, also constitutes good cause to voluntarily leave employment.

General Fear of COVID-19

A claimant who voluntarily leaves or refuses employment because they are advised to do so by a doctor generally does so with good cause.  A claimant’s genuine and reasonable fear for their own safety or an OSHA violation may also constitute good cause to voluntarily leave or refuse employment.  And claimants who are unable to work because of COVID-19 may be eligible for PUA.  However, voluntarily leaving or refusing employment because of a general fear of COVID-19 without more—e.g., a doctor’s note advising the claimant not to work because of an underlying medical condition—is probably disqualifying.

Voluntary Leaving or Refusal of Employment to Receive Benefits

Because of COVID-19 and the additional $600 per week of PUC until July 31, 2020, some claimants would rather receive unemployment insurance benefits than continue to work or return to work.  Generally, a preference to receive unemployment insurance benefits does not constitute good cause to voluntarily leave or refuse employment.  And, to be eligible for benefits, a claimant must be ready, willing, and able to work and searching for work (even during COVID-19).  However, financial hardship may constitute good cause to voluntarily leave or refuse part-time employment where the claimant’s earnings from the part-time employment plus their partial weekly benefit rate, if any, would be less than their full weekly benefit rate.  (It is not clear whether the additional $600 per week of PUC would be included in this calculation.)

Voluntary Leaving or Refusal of Employment and PUA

An individual who is ineligible for regular benefits and whose “place of employment is closed as a direct result of the COVID-19 public health emergency” may be eligible for PUA.  If the individual’s place of employment is open, they can not claim PUA for this reason.  Accordingly, an individual who voluntarily leaves or refuses employment—even with good cause—is not eligible for PUA (unless they are unable to work for another covered reason).  Reasons that constitute good cause under the New York unemployment insurance law—e.g., a wage below the UI cutoff wage, a “compelling family reason” unrelated to COVID-19, a substantial change in the terms and conditions of employment)—are not covered by PUA.  A claimant who voluntarily leaves or refuses employment because of an underlying medical condition or fear for their own safety would need to be “advised by a health care provider to self-quarantine due to concerns related to COVID–19” to be eligible for PUA.

The federal PUA guidance confirms the following:

• “[A]n individual who refuses to return to work when called back by the employer because he or she wanted to receive unemployment benefits” is not eligible for PUA.
• “An individual who refuses an offer of work” is not eligible for PUA, “unless the individual is unable or unavailable to accept the offer of work because of a reason listed under section 2102(a)(3)(A)(ii)(I) of the CARES Act.”
• “Without having been advised by a health care provider to self-quarantine, an individual who does not go to work due to general concerns about exposure to COVID-19, and who does not meet any of the other COVID-related criteria for PUA, is not eligible for PUA.”
• “If the jurisdiction’s stay at home order due to the COVID-19 emergency is lifted and an employer has called his or her employees back to work, . . . an individual who refuses to return to work due to a general fear of exposure to the coronavirus . . . and who does not meet any of the other COVID-19 related criteria . . . is not eligible for PUA because general concerns about exposure to COVID-19 is not one of the reasons listed in section 2102(a)(3)(A)(ii)(I).”

On March 27, 2020, the federal government enacted the Coronavirus Aid, Relief, and Economic Security Act or CARES Act.  The CARES Act contains, among other things, the Relief for Workers Affected by Coronavirus Act, which significantly expands unemployment insurance benefits during the COVID-19 public health emergency.  Workers in New York may now be eligible for one or more of the following types of unemployment insurance benefits:

Regular Benefits

Under the New York unemployment insurance law, workers who are unemployed through no fault of their own may be eligible for unemployment insurance benefits of up to $504 per week for up to 26 weeks.  A claimant’s work history for the last five completed calendar quarters before they apply for benefits determines whether they can open a claim and, if so, their weekly benefit rate.  To receive benefits, a claimant must certify for benefits weekly and meet various requirements, such as being totally unemployed and being ready, willing, and able to work, among other things.  A claimant who voluntarily leaves or refuses employment without good cause or loses employment through misconduct is disqualified from receiving benefits and must earn at least ten times their weekly benefit rate in subsequent covered employment to break the disqualification.

Pandemic Emergency Unemployment Compensation (PEUC)

Claimants with a benefit year ending on or after July 1, 2019 (in effect, claimants who opened a claim on or after July 2, 2018) who exhaust their regular benefits may be entitled to an additional 13 weeks of benefits until December 31, 2020.

Pandemic Unemployment Compensation (PUC)

From April 5, 2020 to July 31, 2020, claimants who are otherwise eligible for regular benefits and/or PEUC will receive their regular weekly benefit rate plus an additional $600.

Pandemic Unemployment Assistance (PUA)

From January 27, 2020 to December 30, 2020, individuals who are not otherwise eligible for benefits and are unemployed, partially unemployed, or unable or unavailable to work because of the COVID-19 public health emergency may be eligible for PUA.  That includes individuals who exhaust their regular benefits and/or PEUC or would traditionally not be eligible for benefits (e.g., self-employed, independent contractors, insufficient work history).  The weekly amount of PUA is the weekly benefit rate that an individual would have received if they were otherwise eligible for benefits[1] (including the additional $600 per week of PUC from April 5, 2020 to July 31, 2020).  The maximum duration of regular benefits and PUA that an individual may receive from January 27, 2020 to December 30, 2020 is 39 weeks.  Individuals who have the ability to telework with pay or are receiving paid sick leave or other paid leave benefits are not eligible for PUA.

Summary

How to Apply

Claimants who already have an open claim (including those who were denied benefits and have pending hearings or appeals) should continue to certify for benefits weekly but otherwise do not need to do anything to receive PEUC and/or PUC.  Claimants who do not already have an open claim should apply for benefits.  Those who are eligible may receive regular benefits plus PUC and/or PEUC.  Those who are not eligible for regular benefits and/or PEUC may be eligible for PUA.  Claimants should apply for benefits online or by telephone in the first week in which they work fewer than 4 days and earn less than the maximum weekly benefit rate (currently $504).  However, where claimants are unable to do so because of website traffic or call volume, the New York State Department of Labor has indicated that it will backdate claims.  Currently, the only advice for claimants who are unable to apply for benefits because of website traffic or call volume is to keep trying and be patient.

Partial Unemployment

Individuals whose wages and/or hours are reduced because of the COVID-19 public health emergency may or may not be eligible for benefits.  A claimant who works 4 or more days in a week, regardless of how much they earn, is not eligible for benefits for that week.  A claimant who earns more than the maximum weekly benefit rate (currently $504) for a week, regardless of how many days they worked, is not eligible for benefits for that week.  A claimant who works fewer than 4 days and earns less than the maximum weekly benefit rate may be eligible for partial benefits.  Any activity that brings in or may bring in income at any time, even if it is only an hour or less, and even if the worker is not paid, counts as a day of work.

Eligibility and Disqualification

It is possible that some existing rules will be relaxed because of the COVID-19 public health emergency, and it is too early to know how some existing rules will be applied to unprecedented facts arising from the COVID-19 public health emergency.  Meanwhile, except where guidance from the New York State Department of Labor says otherwise, claimants should assume that all of the normal rules under New York unemployment insurance law apply.  For example, a claimant who voluntarily leaves their job without good cause or loses their employment through misconduct, even during the COVID-19 public health emergency, may still be disqualified from receiving benefits.

Recoverable Overpayments and Willful Misrepresentations

Under the New York unemployment insurance law, overpayments of benefits based on factually false statements (including concealments) are recoverable, and willful misrepresentations can result in the imposition of forfeiture penalties (1 week of future benefits for each willful misrepresentation that does not result in an overpayment, 2 weeks of future benefits for each willful misrepresentation that results in an overpayment, and 20 weeks of future benefits for flagrant fraud) and, where the willful misrepresentation results in an overpayment, monetary penalties (the greater of $100 or 15% of the overpayment).  These rules remain in effect, and the Relief for Workers Affected by Coronavirus Act incorporates and/or supplements these rules.  While coverage under the Act is broad, it is not unlimited.  Accordingly, claimants should confirm that any statement that they make on an application for benefits or other communication with the New York State Department of Labor is factually true and, if necessary, can be supported by evidence.

[1] The minimum weekly benefit rate is 50% of the average weekly benefit amount (currently $182).

[2] On October 5, 2020, the maximum weekly benefit rate will increase to 38% of the average weekly wage.

[3] PUA may be paid retroactively.