DOL Issues New Guidance for Employers and State Workforce Administrators

Bowles Rice Labor and Employment e-Alert
DOL Issues New Guidance for Employers
and State Workforce Administrators

By Jennifer B. Hagedorn, Esq. and J. Tyler Mayhew, Esq.

On Friday, April 10, the United States Department of Labor (DOL) issued guidance on two (2) important issues related to the Coronavirus Disease 2019 (COVID-19) pandemic. First, the DOL issued interim guidance to employers on when to report COVID-19 as an occupational illness under the Occupational Safety and Health Administration’s (OSHA) recordkeeping regulations. Second, the DOL issued guidance to State Workforce Administrators on how to implement the Pandemic Emergency Unemployment Compensation (PEUC) Program of the Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020, which provides additional unemployment compensation benefits to eligible individuals.

In its Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), the DOL provided interim guidance for use by Compliance Safety and Health Officers for recording occupational illnesses. Under OSHA's recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if:

  1. The case is a confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention (CDC);

  2. The case is work-related as defined by 29 CFR § 1904.5, and;

  3. The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

Under this interim guidance, the DOL makes it clear that employers of workers in the health care industry, emergency response organizations and correctional institutions must still make the determination whether a recorded case is work-related. However, OSHA will not require other employers to make the same work-relatedness determinations, unless there is objective evidence to support the determination, such as a number of cases among employees working close together without an alternative explanation, and the objective evidence was reasonably available to the employer. By forgoing the requirement to make difficult work-relatedness decisions, the DOL hopes this will help employers focus on the implementation of good hygiene practices in the workplace. For additional information, click here.

In Unemployment Insurance Program Letter No. 17-20, the DOL issued guidance to "provide states with operating, financial, and reporting instructions for the PEUC program authorized by Section 2107 of the CARES Act of 2020, Public Law (Pub. L.) 116-136." The Pandemic Emergency Unemployment Compensation (PEUC) Program provides up to 13 additional weeks of benefits to individuals who have exhausted their regular unemployment compensation (UC) entitlement and also provides funding to states to administer the program. This guidance makes clear that it is up to the states to ensure the integrity of the Unemployment Insurance (UI)-related provisions in the CARES Act that respond to the economic effects of COVID-19. The DOL also reiterates that employees cannot quit working without cause and remain eligible for PEUC benefits:

…[q]uitting work without good cause to obtain UI benefits is fraud. Section 2107(e) expressly provides that if an individual has obtained these benefits through fraud, the individual is ineligible for any additional benefit payments, must pay back the benefits, and is subject to criminal prosecution under 18 U.S.C. §1001 and other federal laws. States are expected to enforce these statutory provisions.

This is consistent with the purpose of the PEUC Program, which is to assist those individuals who are no longer working through no fault of their own with an additional 13 weeks of benefits after their regular unemployment compensation entitlement has been exhausted. The full text of the Unemployment Insurance Program Letter No. 17-20 can be found here.

About the Authors:

Jenn Hagedorn

Jennifer B. Hagedorn | (724) 514-8940 is the leader of the Bowles Rice Labor and Employment team. She counsels businesses of all sizes on employment matters involving employee discipline and termination; employment investigations; policies and handbooks; and other general employment advice. She also defends employers in employment litigation involving discrimination, wrongful discharge and harassment. Jennifer is admitted to practice in Pennsylvania, Ohio and West Virginia.

Tyler Mayhew

J. Tyler Mayhew | (304) 264-4209 focuses his practice on labor and employment law, commercial litigation and appellate litigation. Tyler advises employers on human resources and compliance matters, and employment policies. He also defends employers against claims asserted in court, before administrative tribunals and in arbitration. Tyler is admitted to practice in Virginia and West Virginia.

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