68. What are the regular UI COVID-19 policy changes?
On March 16, 2020, DUA filed emergency regulations in response to the COVID-19 emergency. See 430 CMR 22.00 COVID 19 Emergency Regulations. The regulations created and defined a special “standby status,” where workers out of work temporarily due to COVID-19 were eligible for UI. 430 CMR 22.03. Workers in “standby status” satisfied the able, available, and actively seeking requirements by taking reasonable measures to stay in contact with the employer and being available for hours offered by the employer. The emergency regulations initially provided that individuals were presumed eligible for four weeks of standby status; this was automatically extended to eight weeks for all claimants. See UIPP # 2020.07, Emergency Regulations in effect due to hardship caused by COVID-19 (04/07/2020), available at https://www.mass.gov/doc/202007-emergency-regulations-edited-4-20/download.
The emergency regulations changed the definition of “suitable work,” providing that DUA must consider whether a claimant has a condition that prevents her from performing the functions of her job without risk to her health or safety. There is no suitable work for an individual who has been requested by her employer or other authority to self-quarantine, or is caring for a family member who has been requested to self-quarantine. See 430 CMR 22.04; see also UIPP # 2020.06, Emergency Regulations in effect due to hardship caused by COVID-19 (03/18/2020), available at https://www.mass.gov/doc/uipp-202006-emergency-regulations-in-effect-due-to-hardship-caused-by-covid-19/download.
Further, the regulations provided that good cause extensions of deadlines and other requests should be liberally granted if COVID-19 prevented a party from meeting the deadline. See 430 CMR 22.05; UIPP # 2020.06; see BR-0039 9830 70 (Board applied SJC order tolling deadlines until July 1, 2020). The first set of emergency regulations expired on June 15, 2020.
On August 4, 2020, DUA filed new Emergency Regulations related to the ongoing COVID-19 emergency. See 430 CMR 22.00 COVID 19 Emergency Regulations; see also UIPP # 2020.10, New Emergency Regulations in effect due to hardship caused by COVID-19 (08/06/2020), available at https://www.mass.gov/doc/202010-emergency-regulations-8-20/download. Through UIPP # 2020.13, DUA extended the terms of the first set of emergency regulations to cover the gap between June 14, 2020 and August 3, 2020. See UIPP # 2020.13, Application of the emergency regulations in relation to stand-by status (11/02/2020), available at https://www.mass.gov/doc/202013-emergency-regulations-11-20/download.
The second set of emergency regulations expired November 3, 2020, and amended the definition of “standby status,” namely modifying the duration of this special status. The second set of emergency regulations provided that a claimant is presumed to be on standby status during any period that she is “unemployed,” as defined by M.G.L. c. 151A, § l(r), and the sole cause of unemployment is that the employer closed or is operating at reduced staffing levels due to COVID-19. 430 CMR 22.03 (2) (effective 08/04/2020); see BR-0040 5252 59 (11/16/20) (finding claimant who attests that they are unemployed due to COVID-19 and intent to return to former employer are automatically considered to be in standby status); BR-0044 5185 40 (11/24/20) (finding claimant in total unemployment and in standby status from May through June 2020 when she stopped working due to concerns about the employer’s safety protocols). An individual who refuses suitable work offered by the employer is deemed to have voluntarily resigned. BR-0048 9118 32 (11/25/20) (finding claimant in standby status and not disqualified for refusing suitable work due to childcare responsibilities in light of child’s remote schooling); BR-0037 3291 03 (12/8/20) (finding daycare worker who took leave of absence because of pregnancy and concern that she was high-risk for COVID in standby status and not disqualified from benefits after leave when she tried to return and employer did not have work available).
COVID-19 Childcare Policy
In light of caregivers’ responsibilities during the pandemic, DUA further expanded the definition of “suitable work” through UIPP # 2020.12. Work is not suitable if it poses, or the claimant has a reasonable belief that it would pose, a substantial risk to her health or safety or her health or safety would be compromised due to an underlying medical or other condition if she accepted the work. See UIPP # 2020.12, Availability and Suitable Work Issues- Caregiver Responsibilities During the COVID-19 Public Health Emergency, (10/08/2020), available at https://www.mass.gov/doc/202012-childcare-policy-10-20/download. DUA also expanded the interpretation of “good cause” to refuse suitable work, taking into account not only concern for the worker’s health and safety, but also consideration for family and household members.
Good cause exists if the health or safety of her child or dependent, immediate family member, or another household member is put at unreasonable risk by the conditions of employment. See UIPP # 2020.12. An individual also has good cause to refuse suitable work if she must provide full-time care due to age, medical condition, or other condition of another, and no alternate care is available due to COVID.
If an individual could not secure daycare or adult care for a dependent then DUA must consider whether no suitable work is available or if the worker has good cause to refuse otherwise suitable work. If there is no suitable work or the individual has good cause to refuse otherwise suitable work, then they should not be disqualified from UI for capability, availability, or actively seeking work issues. DUA clarified that an individual caring for a child or adult at home is still available for work if the claimant could work from home. See UIPP # 2020.12; BR-0049 5022 57 (12/30/21) (finding claimant, who lost childcare due to COVID-19 when her child’s school closed and transitioned to remote learning, had good cause to turn down otherwise suitable work); BR-0048 0410 60 (1/16/21) (finding claimant able and available for full-time remote work immediately after childbirth and thus eligible for benefits under COVID policies). DUA also pointed to federal guidance on school closures and when a school is closed as applicable to this issue. See UIPL No. 16-20, Change 3 (08/27/2020), available at https://wdr.doleta.gov/directives/attach/UIPL/UIPL_16-20_Change
_3.pdf. The childcare policies apply to all weeks from March 8, 2020, through September 4, 2021. See UIPP # 2021.02, Retroactive Application of COVID-19 Flexibilities (01/22/2021), available at https://www.mass.gov/doc/202102-application-of-covid-19-flexibilities/download; UIPP # 2021.06, The Expiration of Flexibilities for Availability and Suitable Work Issues Caregiver Responsibilities during the COVID-19 Public Health Emergency (09/09/2021), available at https://www.mass.gov/doc/202106-update-of-caregivers-policy/download; UIPP # 2020.08, Update of Retroactive Application of COVID-19 Flexibilities (09/09/2021), available at https://www.mass.gov/doc/202108-update-of-retroactive-application-of-covid-19-flexibilities-policy/download.
Total and Partial Unemployment during COVID-19
UIPP # 2020.14 clarifies the expanded definition of “suitable work,” provided in UIPP # 2020.12, as it applies to the definition of “total and partial unemployment,” under M.G.L. c. 151A §§ 29(a), 29(b), and 1(r) during the pandemic. See UIPP # 2020.14, Suitable Work, Total or Partial Unemployment, and COVID-19 (11/25/2020), available at https://www.mass.gov/doc/202014-suitable-work-total-partial-unemployment-covid-19-flexibilities-11-20/download. An individual is considered to be in total unemployment and not subject to disqualification for capability, availability, or actively seeking work if separated from work due to a furlough or on an unpaid definite or indefinite leave of absence, so long as her inability to work is related to COVID-19.
Similarly, an individual is considered in partial unemployment and not subject to the disqualifications for capability, availability, or actively seeking work, if separated from work due to a furlough or on an unpaid definite or indefinite leave, so long as her inability to work full-time is related to COVDI-19. See UIPP # 2020.14 for illustrative examples; see also BR- 0057 3929 13 (10/29/2021) (finding claimant in total unemployment and eligible for benefits while on an unpaid leave of absence to care for child with special needs during remote learnings due to COVID-19, but not in total unemployment while on paid leave); BR-0057 2844 31 (11/22/2021) (Board finding on-call worker who restricted her availability for work to weekends due to lack of childcare as a result of COVID-19 eligible for partial unemployment); BR-0065 7920 74 (12/23/21) (finding claimant’s leave to care for daughter, as well as her inability to work while on leave, not disqualifying because daughter’s serious mental health issues caused by pandemic); BR-0061 5761 81 (6/3/21) (holding claimant in total unemployment while on leave of absence due to childcare responsibilities as a result of COVID; claimant satisfied availability requirement because she was willing to work while on leave but her employer could not offer suitable work). The total and partial unemployment policy under 2020.14 applies to all weeks from March 8, 2020 through September 4, 2021. See UIPP # 2021.02, UIPP # 2021.06, and UIPP # 2020.08.
Work Search Requirement during COVID-19
DUA waived the work search requirement for individuals during the pandemic, so long as individuals remained ready to return to work once the pandemic emergency measures were lifted. See UIPP # 2020.15, Waiving of Work Search Requirements (11/25/2020), available at https://www.mass.gov/doc/202015-waive-work-search-covid-19-flexibilities-11-20/download. DUA waived the work search requirement retroactively to March 8, 2020. See UIPP # 2021.02; BR- 0043 5836 14 (1/15/20) (reversing disqualification for lack of an adequate work search activities and logs); BR-0033 4969 09 (6/5/20) (reversing work search denial because claimant sought work in field reasonably suited for even though masonry work typically slows down seasonally). DUA reinstated the work search requirement, effective June 15, 2021, coinciding with Governor Baker ending the State of Emergency. See UIPP # 2021.04, Work Search Requirements (05/20/2021), available at https://www.mass.gov/doc/202104-work-search-requirements-memo-052021/download.
Tolling Deadline for Section 30 Training Opportunities Program (TOP)
Typically, claimants must apply for extended benefits through the Section 30 Training Opportunities Program (TOP) by the 20th week of a new or approved claim. (See discussion on Section 30 training in Question 53.) However, this deadline was tolled during the pandemic because of federally funded extended benefits. See 430 CMR 9.05(6). DUA sent notice of Section 30 TOP to all claimants receiving regular UI in December 2021. The 20-week deadline runs from the date of the notice.