67. What is Pandemic Unemployment Assistance (PUA)?
Pandemic Unemployment Assistance was among the most significant expansions to traditional UI eligibility made in response to COVID-19. For the first time, PUA extended UI benefits to millions of workers traditionally excluded from coverage, including the self-employed, workers classified as independent contractors, and workers without sufficient earnings to qualify under traditional state UI eligibility criteria.
Generally, to qualify for PUA, a claimant must not be eligible for regular UI and must be out of work or unable to work because of at least one of the qualifying COVID-19 eligibility reasons detailed in the CARES Act and in U.S. DOL regulatory guidance. To establish “COVID-19” eligibility, claimants had to complete a self-certification each week detailing which (if any) of the COVID-19 eligibility reasons applied to them, and that but-for COVID-19, they would otherwise be able and available for work.
Other eligibility requirements which could affect a PUA claim include identity verification (detailed in Question 69), and—for weeks in 2021—an employment substantiation requirement. Each of these eligibility requirements, along with issues related to overpayments and when retroactive PUA benefits may be available, is described in greater detail below.
To receive PUA benefits, qualifying individuals must be unemployed, partially unemployed, or unable or unavailable to work due to one or more COVID-19 related reasons identified in the CARES Act. CARES Act, 15 U.S.C § 9021(a)(3)(A)(ii)(I). While DUA has at times interpreted COVID-19 eligibility to require claimants to provide evidence that they were affected by COVID-19 or establish that they were working or scheduled to begin work in Massachusetts at the time they were affected by COVID-19, the CARES Act relies only on a claimant’s self-certification to establish their COVID-19 eligibility. Advocates who encounter COVID-19 issues on appeal or who are considering a § 71 redetermination request for a COVID-19 eligibility denial may wish to note where DUA has appeared to impose more stringent eligibility and evidentiary standards for COVID-19 eligibility (see section “PUA Self-Certification,” below). Advocates should also note that while several of the substantive COVID-19 eligibility criteria detailed below were added by the federal DOL subsequent to the CARES Act, they apply retroactively. UIPL No. 16-20, Change 5 at p. 9, (2/25/21), available at https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2021/UIPL_16-20_Change_5.pdf.
The CARES Act unambiguously relies on a claimant’s self-certification to establish COVID-19 eligibility for PUA. The statute requires that the “Secretary [of Labor] shall provide to any covered individual unemployment benefit assistance while such individual is unemployed, partially unemployed, or unable to work . . . . ” CARES Act, § 2102(b). A “covered individual” is in turn defined as an individual not eligible for regular UI benefits and who “provides self-certification” that they are either: (I) otherwise able and available for work but are “unemployed, partially unemployed, or unable or unavailable to work because” of at least one of the listed COVID-19 related reasons; or (II) “self-employed, … seeking part-time employment, do not have sufficient work history, or otherwise would not qualify for regular unemployment or extended benefits” and meet the requirements of subclause (I). Id. at § 2102(a)(3)(A)(i)–(iii) (emphasis supplied). Under the Continued Assistance Act (CAA), individuals are required to self-certify a COVID-19 related reason for each week they claimed PUA benefits beginning the week of January 26, 2021. CAA § 263; UIPL No. 9-21, (12/30/20), available at https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2020/TEGL_09-19.pdf.
The federal DOL has repeatedly confirmed that COVID-19 eligibility for PUA relies on the claimant’s self-certification. In early guidance, for example, it noted “PUA does not require proof of employment. Instead, PUA requires that the individual self-certify that one of the COVID-19 related reasons identified in section 2102(a)(3)(A)(ii)(I) applies to his or her situation.” UIPL No. 16–20, Change 1 (Apr. 27, 2020) at p. I–5, Question 18, available at https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2021/UIPL_16-20_Change_5.pdf; see also UIPL No. 16-20, Change 6 (9/3/21) at I-7, available at https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2021/UIPL_16-20_Change_5.pdf (“Because eligibility is based on self-certification, no further fact-finding is involved”). The only circumstance in which a state could require supporting documentation for COVID-19 eligibility is where it has a reasonable suspicion of fraudulent activity on a claim. UIPL No. 16-20, Change 2 (7/21/20) at p. I-9, Question 23, available at https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2021/UIPL_16-20_Change_5.pdf And, as noted below, while the CAA added an employment substantiation requirement, that requirement’s application is limited to claimants who received a PUA payment in 2021, and applies only for weeks ending in 2021.
DUA’s Board of Review has at times recognized that COVID-19 eligibility is typically established through self-certification alone. In one case, for example, it noted that the CARES Act “merely requires that an individual self-certify that he is unemployed for an approved COVID-19 reason, not that he prove it with written evidence.” See BR-N6 FMNJ JLF8 (2/11/21) (finding claimant eligible for PUA where claimant only submitted his testimony that he was out of work because his employer closed due to COVID-19).
Advocates should be aware, however, that despite the plain meaning of the CARES Act and the clear regulatory guidance, the Board of Review and DUA have in other cases interpreted COVID-19 eligibility to require claimants to submit evidence of their COVID-19 eligibility or of their employment or prospective employment in Massachusetts. At the least, in several cases, the Board has emphasized that evidence does not need to be formal or include all details about the claimant's situation to meet this standard. See BR-N6 FJV6 KNFD (5/3/21) (finding claimant with a rescinded job offer eligible for PUA where claimant submitted a signed employer letter specifying her salary, job title, job duties, and conditions of employment, but failing to identify a start date or benefits, and containing one typo). See also BR-N6 FJVJ FJ2L (8/13/21) (finding seasonal water park employee eligible for PUA despite the lack of a scheduled start date where claimant submitted an employer email stating he would have been re-employed for Summer 2020 but for COVID-19). See also BR-N6 FM7T 39J8 (6/9/21) (finding in-home caregiver for elderly clients eligible for PUA where claimant only provided 2020 checks and a client letter, which suggested she could no longer work due to COVID-19 and the nature of her job).
Regarding proof of COVID-19 diagnoses, the Board of Review considers the difficulty of getting medical evidence of COVID-19 early in the pandemic and has relied on claimant testimony alone to establish eligibility. See BR-N6 FL5T RFNR (6/9/21) (finding claimant eligible for PUA despite lack of medical evidence where claimant was separated from employment after experiencing COVID-19 symptoms in March of 2020 and taking time off to avoid working in retail stores with no mask mandates).
Furthermore, DUA has interpreted the COVID-19 eligibility requirement as obligating claimants to self-certify their connection to Massachusetts. See BR-N6 FJV7 94N3 (3/22/21) (finding Rhode Island resident ineligible for PUA where claimant did not provide evidence that he worked or was scheduled to work in Massachusetts in 2020). But see BR-N6 FJVF NM93 (10/6/21) (finding New Hampshire resident eligible for PUA where claimant proved that she operated a cleaning business in Massachusetts and experienced a significant reduction in business due to the pandemic). See also BR-N6 FJV9 6KKL (10/6/21) (finding New York resident eligible for PUA where claimant proved that he worked as a rideshare driver in Massachusetts during the pandemic).
COVID-19 Related Eligibility Reasons
Claimants can satisfy the PUA COVID-19 eligibility requirement by self-certifying one of the following circumstances identified in the CARES Act, or updated criteria added by the U.S. DOL pursuant to authority granted in the CARES Act. CARES Act, § 2101(a)(3)(A)(ii)(I). DUA published examples of each identified COVID-19 related reason for claimants to reference when assessing their PUA eligibility. See UIPL No. 16-20, Change 6, Attachment 1, (9/3/21), Acceptable COVID-19 Related Reasons for PUA Eligibility, available at https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2021/UIPL_16-20_Change_5.pdf.
The Board of Review has recognized that the U.S. DOL’s examples are not exhaustive, and permits states to apply COVID-19 eligibility criteria to additional circumstances which align with interpretations in U.S. DOL guidance and the CARES Act. BR-N6-FRRV-V6TM (4/13/22) (Finding claimant satisfied COVID-19 eligibility requirement based on medical provider’s advice to self-quarantine to protect immunocompromised family members, as this aligns with examples provided in U.S. DOL guidance).
- The individual seeking PUA benefits has been diagnosed with COVID-19 or is seeking a medical diagnosis due to COVID-19 symptoms.
- One of the individual’s household members has been diagnosed with COVID-19.
- The individual is caring for a family member or a household member with a COVID-19 diagnosis.
- The individual is the primary caregiver for a child or household member who is unable to attend school or another facility because of a COVID-19 related closure, and the care provided by the school or facility is needed for the individual to go to work.
- The individual is unable to go into the workplace because of a quarantine imposed due to the pandemic.
- The individual is unable to go into the workplace because a health care provider has advised a self-quarantine due to COVID-19 concerns.
- The individual was scheduled to begin employment, but does not currently have a job or is unable to work a scheduled job because of the pandemic. Claimants may establish scheduled employment with informal evidence, such as pictures of calendars or text messages. See BR-N6 FJV7 7KMR (4/9/21) (finding self-employed comedian eligible for PUA despite her move to California where claimant submitted text messages and pictures of her calendar and website as evidence that she had Massachusetts work scheduled for April 2020). Claimants may also demonstrate scheduled employment through employer letters and testimony. See BR-N6 FJVH 5T5L (6/23/21) (finding former house cleaner eligible for PUA where claimant provided letters and sworn testimony from former clients, along with supporting bank statements). Claimants who were on leave prior to the pandemic but could not be hired back due to COVID-19 may be eligible for PUA as well. See BR-N6 FMLT 47TK (8/13/21) (finding former cashier eligible for PUA where claimant took a year of maternity leave, was ready to return in February of 2020, but was unable to return because employer’s business had declined due to COVID-19).
- The individual has become the primary or major source of income for a household because the head of household died from COVID-19.
- The individual has to quit his or her employment because of COVID-19. See BR-N6 FM56 FNTN (3/22/21) (finding claimant eligible for PUA where claimant quit a physically-demanding job due to lingering breathing problems from COVID-19). Individuals who temporarily left employment due to COVID-19 may also be eligible for PUA. See BR-N6 FJVD 3TP8 (10/6/21) (finding North Carolina-based basketball coach eligible for PUA where claimant was temporarily unable to coach in Massachusetts due to quarantine restrictions and high-risk status, but intended to resume coaching after completing COVID-19 vaccinations).
- The individual’s workplace is closed due to the pandemic.
- The individual seeking PUA benefits has refused to return to unsafe work or refused to accept a new offer of unsafe work. This new COVID-19 related reason only applies to claimants who were receiving UI, but were disqualified under state law for refusing to work at a site that was not complying with COVID-19 safety precautions.
- The individual works for an education institution or educational service agency and is unemployed or partially unemployed because of schedule changes directly caused by COVID-19. The individual’s ability to self-certify under this COVID-19 related reason is impacted by whether the individual has a contract or reasonable assurance to return to his or her position the following school year. Individuals who do not have a contract or reasonable assurance and are not eligible for regular UI, PEUC, or EB may self-certify eligibility for PUA under this COVID-19 related reason if they have faced substantial schedule changes. Individuals with a contract or reasonable assurance may be deemed ineligible for PUA if they file for a week that is between or within terms under a contract or reasonable assurance to return the upcoming school year. However, these individuals may be deemed eligible if they have another non-education job and self-certify that they are unemployed, partially unemployed, or unable or unavailable to work for a different COVID-19 related reason. Furthermore, individuals who lost a contract or reasonable assurance for the following school year due to schedule disruptions can establish eligibility under this new COVID-19 related reason or a different COVID-19 related reason that applies to their circumstances.
- The individual has experienced a reduction of hours or a temporary or permanent lay-off because of the pandemic. See BR-N6 FJTV 3L6K (4/9/21) (finding Massachusetts lobster fisherman eligible for PUA despite New Hampshire residence where claimant worked at a substantially reduced level due to COVID-19 related restaurant closures and decreased lobster demand). See also BR-N6 FJV9 9K3M (5/3/21) (finding professional photographer eligible for PUA despite New Hampshire residence where claimant faced a significant reduction of Massachusetts-based photography work due to COVID-19 restrictions). See also BR-N6 FV4D J2HN (10/29/21) (finding self-employed construction worker eligible for PUA where claimant testified that he experienced a substantial slow-down in work, as customers did not want people in their homes due to COVID-19 risks).
- The CARES Act also takes COVID-19 related school closures into account when determining PUA eligibility. CARES Act, § 2102(a)(3)(A)(ii)(I)(dd). An individual who is permitted to work from home and is not receiving paid leave may be eligible for PUA if he or she is the primary caregiver for a student who requires so much attention during remote learning that working from home is not feasible. UIPL No. 16-20, Change 3, (8/27/20), available at https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2021/UIPL_16-20_Change_5.pdf.
The CAA established a new employment substantiation requirement for claimants receiving PUA payments after December 27, 2020. CAA § 241; UIPL No. 9-21, (12/30/20), available at https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2020/TEGL_09-19.pd. Under this requirement, claimants must provide DUA with documentation proving employment, self-employment, or the scheduled beginning of employment or self-employment. See UIPL No. 16-20, Change 4 at p. I-9 (1/8/21), available at https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2021/UIPL_16-20_Change_5.pdf.
Notably, however, this requirement did not modify the CARES Act’s reliance on a claimant’s self-certification to establish COVID-19 eligibility for PUA. Rather, employment substantiation is a distinct PUA eligibility requirement, subject to several significant limitations. First, the requirement applies only to claimants who received a PUA payment after the enactment date of the CAA on December 27, 2020. Id. Second, the employment substantiation requirement applies only to weeks ending on or after December 27, 2020, such that “if the individual fails to submit such documentation, the state may only establish an overpayment for those weeks of benefits ending on or after December 27, 2020 (the enactment date of the CAA).” Id. at I-11. As such, a claimant “cannot be deemed ineligible for a week of unemployment before the date of enactment solely for failure to submit documentation.” Id. Finally, as described in more detail below, the documentation required “need only demonstrate the existence of employment or self-employment at some point between the start of the applicable tax year and the date of filing.” Id. at I-10.
The deadline for uploading employment substantiation documentation depends on when the claimant initially filed for PUA. Individuals filing a new PUA application on or after January 31, 2021, must submit documentation within 21 days of applying or the date determined by DUA, whichever is later. Individuals who filed for PUA before January 31, 2021, and received PUA benefits on or after December 27, 2021, must submit documentation within 90 days of applying or the date determined by DUA, whichever is later. These deadlines may be extended for individuals who demonstrate good cause for not submitting the documentation on time. CAA § 241; UIPL No. 16-20, Change 4, (1/8/21), https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2021/UIPL_16-20_Change_5.pdf. Individuals who do not receive an extension and do not submit employment substantiation documentation by the applicable deadline will be deemed ineligible for PUA. Additionally, these individuals will be considered overpaid for any PUA benefits received after December 27, 2020. Claimants can only be disqualified solely based on employment substantiation for weeks in 2021 when they received PUA payments. UIPL No. 16-20, Change 4, (1/8/21), https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2021/UIPL_16-20_Change_5.pdf.
The U.S. DOL has provided a non-exhaustive list of documentation which can satisfy the employment substantiation requirement with regard to employment, self-employment, or the planned commencement of either. Namely:
Proof of employment includes, but is not limited to, paycheck stubs, earnings and leave statements showing the employer’s name and address, and W-2 forms when available. Proof of self-employment includes, but is not limited to, state or Federal employer identification numbers, business licenses, tax returns, business receipts, and signed affidavits from persons verifying the individual’s self-employment. Proof of employment with organizations such as the Peace Corps, AmeriCorps, and educational or religious organizations includes, but is not limited to, documentation provided by these organizations and signed affidavits from persons verifying the individual’s attachment to such organizations.
Proof of the planned commencement of employment includes, but is not limited to, letters offering employment, statements/affidavits by individuals (with name and contact information) verifying an offer of employment. Proof of the planned commencement of self-employment includes, but is not limited to, business licenses, state or Federal employer identification numbers, written business plans, or a lease agreement. Individuals must present the proof of employment and the state may verify the proof submitted using records the state may have available, such as wage records or state revenue records.
UIPL No. 16-20, Change 4 at I-10 – I-11 (1/8/21), available at https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2021/UIPL_16-20_Change_5.pdf.
Notably, the documentation submitted to satisfy the employment substantiation requirement “need only demonstrate the existence of employment or self-employment at some point between the start of the applicable tax year and the date of filing.” Id. at I-10. For claims submitted with an effective date on or before December 27, 2020, this means the individual must “submit documentation that substantiates employment or self-employment [or the planned commencement of such employment or self-employment] which occurred between January 1, 2019 (the start of the applicable tax year) and December 27, 2020.” Id. at I-11. For claims effective January 3, 2021 or later, the documentation must substantiate “employment or self-employment [or the planned commencement of employment or self-employment] which occurred between January 1, 2020, (the start of the applicable tax year) and January 3, 2021. Id. Practically, this means that employment substantiation need not be satisfied with proof of the employment or self-employment or planned commencement of employment or self-employment which was affected by COVID-19. For example, a claimant who filed for PUA before December 27, 2020, and received benefits in 2021 may have satisfied COVID-19 eligibility by self-certifying that they were unable to start a job because of COVID-19. However, they need not satisfy the employment substantiation requirement with proof of the job offer which was rescinded due to COVID-19. Rather, they could rely, for example, on a tax return reflecting earnings in separate employment or self-employment in 2019.
Overpayments are created when DUA determines that an individual received a payment he or she was not entitled to. UIPL No. 20-21, (5/5/21), available at https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2021/UIPL_20-21.pdf. PUA overpayments result from various circumstances, such as DUA’s inability to verify an individual’s declared dependents, identity, or attachment to the labor force before applying for PUA. Individuals may also face PUA overpayments if they received UI while claiming PUA or if they failed to prove their Massachusetts residence or attachment to the Massachusetts labor market. Additionally, overpayments can result from claimants’ failure to connect their unemployment to a COVID-19 related reason identified in the CARES Act. Unless claimants are granted a redetermination or overpayment waiver, they are required to repay the PUA benefits they were overpaid. Pandemic Unemployment Assistance (PUA) overpayments and waivers. Mass.gov (Jan. 29, 2022, 5:00 PM), https://www.mass.gov/info-details/pandemic-unemployment-assistance-pua-overpayments-and-waivers. After determining that an individual has a PUA overpayment, DUA must issue a written determination outlining the basis of the determination and the appeal process and deadline. UIPL No. 20-21, (5/5/21), available at https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2021/UIPL_20-21.pdf.
Under the CAA, states have the authority to waive PUA overpayments when the claimant is not at fault and repayment would be contrary to equity and good conscience. CAA § 201(d); UIPL No. 9-21, (12/20/20), available at https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2021/UIPL_20-21.pdf. Under this Act, DUA implemented a PUA overpayment waiver process, borrowing its regular UI overpayment waiver standards. Learn About Overpayment Waivers. (Jan. 30, 2022, 5:00 PM), https://www.mass.gov/info-details/learn-about-overpayment-waivers. Claimants can apply for PUA overpayment waivers through their online accounts. Once a claimant applies for an overpayment waiver, DUA will not take action to collect on that individual’s overpayment.
Only no-fault overpayments are eligible for waivers. DUA may waive the PUA overpayment if there is no finding of fault and recovery would be against equity and good conscience. See UIPL No. 20-21 (5/5/20), available at https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2021/UIPL_20-21.pdf and UIPL 20-21, Change 1 (2/7/22), available at https://wdr.doleta.gov/directives/attach//UIPL/UIPL_20-21_Change_1.pdf. The U.S. DOL made clear that state law defines “fault” and gave states flexibility to use state law to define “against equity and good conscience,” which DUA elected. Id.; see 430 CMR 6 and AH c. 9, § 5G (defining “against equity and good conscience). When reviewing overpayment waiver applications, DUA considers whether the individual’s income is less than his or her expenses, whether the individual used the money for unordinary expenses, such as paying off debt, and whether the individual gave up other money, such as welfare payments, because he or she received PUA benefits. If DUA waives an individual’s overpayment, DUA will not recover any of the waived amount. If DUA does not waive the overpayment, the individual can pay the required amount online with a credit card or by check. The CAA borrowed regular UI appeal processes as well, allowing individuals to appeal PUA overpayment waiver denials within 30 days of the determination. Moreover, individuals may be able to submit an additional waiver request at a later time. Pandemic Unemployment Assistance (PUA) overpayments and waivers. Mass.gov (Jan. 29, 2022, 5:00 PM), https://www.mass.gov/info-details/pandemic-unemployment-assistance-pua-overpayments-and-waivers.
Claimants will not receive an overpayment waiver if DUA has determined their overpayment to be the result of fraud. However, claimants can appeal the fraud determination as part of their appeal of the substantive issue. UIPL No. 20-21, (5/5/21), available at https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2021/UIPL_20-21.pdf.
After the U.S. DOL created three additional COVID-19 related reasons for the PUA COVID-19 eligibility requirement, states requested guidance about how notification requirements apply to expanded PUA eligibility provisions. The federal DOL clarified that states are obligated to notify every individual who was denied PUA due to a COVID-19 eligibility issue about the expansion of this provision. Moreover, these notifications had to inform the individual about the opportunity to self-certify to the complete list of COVID-19 related reasons and specify the date the individual’s unemployment began. While this notice had to be comprehensive, states were granted flexibility in how they administer notification, enabling them to send a generic message to all PUA claimants or send self-certification forms only to claimants who were denied PUA due to a lack of COVID-19 eligibility. Additionally, states were instructed not to send this notice to PUA claimants who previously misrepresented their identities. See UIPL No. 16-20, Change 6, (9/3/21), Pandemic Unemployment Assistance (PUA) Program: Updated Operating Instructions and Reporting Changes, available at https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2021/UIPL_16-20_Change-6.pdf.
The U.S. DOL also provided states with guidance on how to proceed once the PUA program expired on September 4, 2021. The Department clarified that while states may not administer PUA for weeks of unemployment ending after September 4, 2021, states must accept new PUA applications through October 6, 2021. Additionally, individuals may file new PUA applications after October 6, 2021, if they filed a regular UI claim before this date, but were deemed ineligible after the PUA program ended. Individuals in this position must file for PUA within 21 days of the regular UI ineligibility determination. Further, DUA is required to notify affected individuals of this 21-day filing deadline. See UIPL No. 16-20, Change 6, Attachment II, (9/3/21), Questions and Answers: State Activity after the Pandemic Unemployment Assistance (PUA) Program Expires, available at https://wdr.doleta.gov/directives/attach/UIPL/UIPL_16-20_Change-6_Attachment-2.pdf.