United States: US Department Of Labor Issues Guidance Concerning COVID-19 OSHA Reporting Requirements And Unemployment Compensation Under The CARES Act

Over the past two weeks, the US Department of Labor ("DOL") issued several new memoranda containing guidance for both employers and states related to the ongoing COVID-19 crisis. On April 10, 2020, the Occupational Safety and Health Administration ("OSHA") issued "Enforcement Guidance for Recording Cases of coronavirus Disease 2019 (COVID-19)," which provides interim guidance to Compliance Safety and Health Officers ("CSHOs") regarding the Occupational Safety and Health Act's recordkeeping requirements with respect to recording COVID-19 as an occupation illnesses. In addition, the Employment and Training Administration ("ETA") has issued three Unemployment Insurance Program Letters (UIPLs) 15-20 , 16-20 and 17-20, which provide guidance to states concerning the enhanced unemployment insurance benefits provided by the federal government pursuant to the Coronavirus Aid, Relief, and Economic Security ("CARES") Act of 2020.

Guidance Concerning Recording COVID-19 Cases

Under the Occupational Safety and Health Administration (OSHA) recordkeeping guidelines, COVID-19 is a "respiratory illness" that should be recorded on an employer's OSHA Form 300 if: (1) an employee tested positive for COVID-19; (2) the case is work-related (i.e., exposure occurred in the work environment); and (3) the illness results in an employee's death, days away from work, medical treatment beyond first aid, or loss of consciousness.

Nonetheless, OSHA recognize that in areas where there is ongoing community transmission, most employers may have difficulty determining whether employees who contracted COVID-19 did so due to exposure in the workplace. Accordingly, until further notice, except for certain narrow exceptions, OSHA had advised that it will not enforce its recordkeeping requirements to require employers to make work-relatedness determinations for COVID-19, except where:

• there is objective evidence that a COVID-19 case may be work-related (e.g., when cases develop among workers who work closely together without an alternative explanation); and
• that objective evidence was reasonably available to the employer (e.g., information was given to the employer by employees).

Employers in the healthcare industry, emergency response organizations, and correctional institutions are excluded from this exception and must continue to make work-relatedness determinations pursuant to 29 CFR § 1904.

The DOL Provides Guidance to States Concerning Unemployment Compensation Under the CARES Act

On March 27, 2020, the President signed the CARES Act into law. Among other provisions, the CARES Act expands unemployment insurance benefits available to workers who are impacted by the COVID-19 pandemic by creating several new federal programs: Pandemic Emergency Unemployment Compensation ("PEUC"), Federal Pandemic Unemployment Compensation ("FPUC"), and Pandemic Unemployment Assistance ("PUA"). The ETA recently issued three UIPLs providing guidance to states regarding implementation of these programs.

Pandemic Emergency Unemployment Compensation ("PEUC")

As set forth in Section 2107 of the CARES Act, PEUC provides up to 13 additional weeks of federally-funded unemployment benefits to eligible individuals who have exhausted their regular unemployment compensation entitlement. On April 10, 2020, the DOL issued UIPL 17-20 which sets forth technical guidelines for states regarding the implementation and administration of PEUC, and provides important information concerning eligibility for PEUC benefits. To qualify for PEUC benefits, individuals must:

• have exhausted all rights to regular compensation under state or federal law with respect to a benefit year ending on or after July 1, 2019;
• have no rights to regular compensation for a given week under any other state or federal unemployment compensation law, or to compensation under any other federal law;
• not be receiving compensation for a given week under the unemployment compensation laws of Canada; and
• be able to work, available to work, and actively seeking work, although states must provide flexibility concerning the "actively seeking work" requirement if individuals are unable to seek work because of the COVID-19 crisis, including because of illness, quarantine, or other restrictions on movement.

An eligible individual has "exhausted" benefits when either:

• no payments of regular unemployment compensation may be made under state law because that individual has received all available regular unemployment compensation during the individual's base period; or
• the individual's right to regular unemployment compensation has been terminated by the expiration of the benefit year ending on or after July 1, 2019, to the extent such rights existed.

Federal Pandemic Unemployment Compensation ("FPUC")

On April 4, 2020, the DOL issued UIPL 15-20, which provides guidance to states regarding the implementation of FPUC. Section 2014 of the CARES Act created the FPUC, which provides a temporary emergency increase in unemployment compensation benefits for eligible individuals. Specifically, FPUC provides eligible individuals with an additional $600 per week in emergency unemployment compensation if they meet certain eligibility requirements, for a period of up to four months, until no later than July 31, 2020. This benefit is in addition to any weekly benefits individuals receive from other unemployment compensation programs. UIPL 15-20 clarifies that:

• If an individual is eligible to receive at least $1 of unemployment compensation benefits for the week, that individual is eligible for the full $600 FPUC payment, even if the individual is entitled to partial unemployment compensation.
• An individual is not entitled to FPUC for a week in which the individual is ineligible for regular unemployment benefits or benefits from another federal program, such as PEUC and PUC.
• Individuals are eligible for and may receive FPUC concurrently with payments under federal and state unemployment programs, including PEUC, PUC, and short-time compensation ("STC") or work share.
• The $600 FPUC is taxable and taxes must be withheld from the payments.

Pandemic Unemployment Assistance ("PUA")

On April 5, 2020, the DOL issued UIPL 16-20, which provides guidance to states regarding the implementation of PUA. Section 2012 of the CARES Act created the PUA, which provides temporary unemployment compensation benefits through December 31, 2020, to individuals who normally would not qualify for regular unemployment benefits under state law, such as individuals who are self-employed, individuals seeking part-time employment, as well as individuals who have exhausted their right to such benefits. To be eligible for PUA, an individual must be fully or partially employed or unable to work due to specified COVID-19 related reasons. PUA benefits are generally not available to individuals who are able to telework or who are receiving paid sick or other paid leave benefits, unless they are earning less than their customary workweek. Importantly, individuals who qualify for PUA may also qualify for the additional $600 unemployment benefits under the FPUC.

PUC benefits are available for a maximum of 39 weeks, minus any weeks of regular unemployment compensation an individual received. However, UIPL 16-20 reminds states that many of the COVID-19 qualifying reasons for PUA assistance will be short in duration such that the individual will not be entitled to receive PUA for the full 39 weeks. The PUC period begins on January 27, 2020, and claims may be backdated to the first week after that date in which an individual is eligible for PUA.

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