Since the initial COVID-related federal legislation passed in the Spring of 2020, there have been a multitude of changes to available unemployment benefits. Some have impacted employers’ ability to retain employees. Some have benefitted employers that have had to close temporarily or layoff/terminate a significant portion of the workforce. One of the efforts undertaken by the Oklahoma Employment Security Commission (OESC) was a public campaign to get employees back to work. You can find on the OESC’s website a notice that “[n]ot returning to work when work is available could be considered ‘refusal to work’ and designated as voluntarily terminating employment.” This was in response to concerns expressed by business groups about employees who might choose unemployment compensation over an offer to return to work.

One of the several initial offerings by the federal government was Pandemic Unemployment Assistance (PUA), which provided federal funds for states to administer to persons who would not in most states, including Oklahoma, be eligible for unemployment because they were not traditionally employed (receiving a W-2). These individuals were self-employed, gig, or contract workers. In order to be eligible for PUA funds, an individual must be unable to work due to a COVID-related reason. The person must also not be eligible for regular unemployment benefits (or Pandemic Emergency Unemployment Benefits or Extended Benefits). PUA benefits are currently available through March 13, 2021.

On February 25, 2021, the U.S. Department of Labor issued an advisory to the states titled “Expanded Eligibility Provisions for the Pandemic Unemployment Assistance (PUA) Program.” The purpose of the guidance is to expand eligibility of the PUA funds to include:

1. Individuals who refuse to return to work that is unsafe or accept an offer of new work that is unsafe. Unsafe would include a workplace that is not complying with national, state, or local health and safety standards related to COVID-19.
    
2. Certain individuals providing services to educational institutions or educational service agencies. This will involve a situation when the person certifies they are unemployed due to the volatility in the work schedule that is directly caused by COVID-19.
    
3. Individuals experiencing a reduction of hours or temporary or permanent layoff as a result of COVID-19. The inclusion of this language was to address a gap in earlier language which addressed an employer who had a shut-down, but which failed to address situations falling short of that.

The guidance dramatically broadens possible coverage to employees in the private sector. The DOL provides two examples under category 1 which are illustrative of situations Oklahoma employers have faced and may again face before the pandemic ends.

Example 1: An individual was laid off in June 2020 and began receiving regular unemployment compensation. The individual was recalled to work in October 2020. However, because the worksite was not in compliance with the local mask mandate, the individual refused to return to work. The individual was disqualified from continued receipt of regular unemployment compensation under state law. The individual is now eligible to apply for PUA under this new COVID-19 related reason.

Example 2: An individual was laid off in October 2020 and began receiving regular unemployment compensation. The individual received a new job offer in January 2021; however, the new worksite was unsafe due to non-compliance with physical distancing measures under state law. The individual was disqualified from continued receipt of regular unemployment compensation under state law. The individual is now eligible to apply for PUA under this new COVID-19 related reason.

The guidance makes it clear that if the individual remains eligible for unemployment under state law (for example, the state determines that the individual was justified in refusing to return or in declining the job because of safety concerns), the individual would not be eligible for PUA. However, if state law does not provide any protection for this employee, PUA benefits will now be an avenue for relief.

Because this guidance is hot off the press, we would expect the OESC to digest it this week but, as always, it may take a bit of time for the processes to catch up.

Finally, a quick status report on the OESC’s actions during the pandemic that may be of interest:

• While the OESC had previously waived the work search requirement, that order expired October 25, 2020. Currently, a claimant must search for work to remain eligible for benefits.
   
• While the OESC had previously waived the one-week waiting period for claims, that order also expired October 25, 2020. As of October 25, 2020, all claimants filing new claims are required to wait one week, during which all eligibility requirements are met but no payments are issued. This time is to allow the OESC to verify eligibility, etc. If approved, claimants will ultimately receive benefits for that one-week period, they will just be delayed.
   
• The OESC previously directed that “all benefit wage charges to experience rated employers for allowed claims of unemployment benefits that are directly related to the COVID-19 pandemic shall be waived.” However, this order expired December 31, 2020. (If you learn that your benefit wage charges were adversely affected due to 2020 claims that arose out of the pandemic, you may want to file a protest.)

It seems premature to speculate about the specifics of any pending legislation. However, it appears likely that the federal government will pass some legislation that will include changes to unemployment – if nothing other than an extension of the benefits the federal government is already offering.

By Kristen L. Brightmire, kbrightmire@dsda.com