Furlough or Layoff: A Distinction with a Difference Massachusetts DUA Issues Emergency Regulations Relating to COVID-19

The Massachusetts Department of Unemployment Assistance has issued emergency regulations related to the COVID-19 pandemic.  The regulations became effective immediately after being issued on March 16, 2020 and can be found at 430 CMR 22.00.  The new regulations make several changes with the purpose of providing unemployment assistance to as many people as possible who have been affected by the pandemic.

The regulations create a special “standby” status under the law.  This new standby status makes individuals who are temporarily unemployed due to lack of work because of the COVID-19 pandemic eligible for unemployment benefits.  Under the regulations, an individual will be considered unemployed “due to lack of work” if the individual’s workplace is shutdown, or if the individual needs to stay home for any reason related to COVID-19. 

The usual DUA requirement to look for work while seeking DUA benefits is waived under the regulations, so long as the claimant remains on standby and maintains contact with the employer.  The claimant must be available for all hours of suitable work offered by the employer.  Under the regulations, the definition of suitable work changed.  The DUA will take into consideration whether the claimant has a “condition” that prevents the claimant from performing the functions of the job without risk to his or her health or safety.  Under the regulations, a “condition” is considered to be a request from an employer, medical professional, local health official or any civil authority for the claimant or a claimant’s immediate family member or household member to self-quarantine, even if the claimant or family/household member has not been diagnosed with COVID-19. 

DUA will ask an employer to verify a claimant’s standby status.  If the employer fails to respond, the claimant will be deemed to be on standby status for four weeks.  If the employer responds, an employer may request that the employee be on standby status for a maximum of 8 weeks.  If the employer responds that the employer is not on standby status or does not have a return to work date within 8 weeks, the claimant is subject to M.G.L. c. 151A, 24(b) (“Be capable of, available, and actively seeking work in his usual occupation or any other occupation for which he is reasonably fitted”).  The Director of the DUA, at his discretion, may grant standby status for more than 8 weeks if there was a COVID-19 infection at the employer’s place of business that caused the employer to close or curtail operations for a longer period of time.

Other changes to DUA requirements include:

  • File claims for benefits online (all in person services at Career Centers suspended);
  • All requirements regarding attending seminars at the MassHire career centers have been suspended;
  • Deadlines missed by employers and claimants due to effects of COVID-19 may be excused under DUA’s good cause provision;
  • Employers whose businesses are severely impacted by COVID-19 can request extensions for filing and paying unemployment contributions;
  • DUA will excuse employers and claimants from missing deadlines due to COVID-19 under certain circumstances;
  • “Worksearch” requirements will be interpreted to appropriately permit claimants affected by COVID-19 to collect benefits; and
  • All appeal hearings will be held by telephone only.

Emergency legislation has also been passed that will allow new claims to be paid more quickly by waiving the 1 week waiting period for unemployment benefits.  The emergency legislation Authorizing Waiver of the One Week Waiting Period for Unemployment Benefits became effective on March 10, 2020 and expires 90 days after the Commonwealth’s state of emergency status ends. 

Certain health insurance providers in the Commonwealth, including Harvard Pilgrim and Tufts, have amended their eligibility requirements to allow employers to maintain coverage for employees who are furloughed or on temporary leave as a result of closures due to COVID-19.  Extended coverage is limited to employees who can no longer work due to the pandemic.  Employers should check with their health insurance brokers to determine if such reduced eligibility requirements apply to their workforce. 

In this unprecedented environment, guidance is quickly changing.  All circumstances also are highly fact dependent.  Employers should seek up to the minute advice from their employment counsel.  NELGPC attorneys are available if you have questions. 

© March 23, 2020


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