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  1. Unemployment Benefits During the COVID-19 Crisis

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    During this unprecedented time, a record number of Americans are filing unemployment compensation (UC) claims.  Stember Cohn & Davidson-Welling wants you to know what benefits and options are available if you lose work or income due to the Covid-19 crisis.

    STATE EXPANDED BENEFITS

    Pennsylvania has expanded eligibility for UC benefits for employees affected by COVID-19. Recently enacted state law waives the 1-week waiting period (the “waiting week”), suspends weekly work search and registration requirements, and expands eligibility due to job or wage loss from the pandemic.

     You should file for UC if you are not working or on paid leave and:

    • Your employer closed or shutdown due to COVID-19;
    • Your employer reduced your hours due to COVID-19;
    • Your employer told you not to work because of concerns of spreading COVID-19;
    • You’ve been advised by a healthcare provider or employer to quarantine or self-isolate because of COVID-19 exposure, symptoms, or positive diagnosis;
    • You are caring for a household or family member suspected of having or who tested positive for COVID-19.

    You are not eligible for UC benefits if you choose to stay home from work but are not infected or caring for someone who is, and your employer is open. Standard UC lasts 26 weeks. You can file on line at: https://www.uc.pa.gov/unemployment-benefits/file/Pages/default.aspx.

    FEDERAL EXPANDED BENEFITS

    Congress has passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), expanding UC in several important ways.

    Pandemic Emergency UC. If you are receiving or previously received UC (for a Benefit Year ending on or after July 1, 2019), you can still receive 13 additional weeks of UC up to a total of 39 weeks. The 13 additional weeks are be available up through December 31, 2020.

    Pandemic UC. If you are receiving UC in any amount, you should be eligible for an additional $600 weekly under the CARES Act. This $600 is in addition to your weekly UC benefit and lasts up to 16 weeks. You do NOT need to fill out a separate application for the additional 16 weeks; your benefits should automatically update when you file bi-weekly. The additional 16 weeks apply to any week between March 27 and July 25, 2020 in which you are eligible for UC. The additional $600 is subject to 10% Federal Withholding Tax.

    Pandemic Unemployment Assistance (“PUA”). If you are self-employed, an independent contractor or gig worker, or if you are an employee who did not have sufficient wages to qualify for UC, or you have exhausted your rights to UC, you may be eligible for PUA benefits.

    Standard UC does not cover the self-employed or independent contractors – but PUA does.  For more information, See  https://pua.benefits.uc.pa.gov/vosnet/Default.aspx. PUA provides up to 39 weeks of benefits plus the additional $600 weekly payment. Benefits can be retroactive to January 27, 2020 and end after 39 weeks or on December 31, 2020, whichever comes first.

    PUA applicants must self-certify that they lost income or can’t work due to a COVID-19 related reason, which include the following situations:

    • You’ve been diagnosed with COVID-19 or experiencing related symptoms;
    • A member of your household has been diagnosed;
    • You are providing care for someone diagnosed with COVID-19;
    • You are providing care for a child whose school is closed due to COVID-19;
    • You are quarantined or told to self-quarantine by a health care provider;
    • You were scheduled to start work but can’t or lost the job because of COVID-19;
    • You’re now the breadwinner for your household because the head of the household died from COVID-19 or related complications;
    • You had to quit your job as a result of COVID-19;
    • Your workplace closed because of COVID-19;
    • You don’t qualify for standard UC but are affected by COVID-19.

    You can receive PUA from when you lost your job (not just from when you filed).  You will NOT be eligible for PUA if you can work remotely or are receiving paid sick leave or other paid leave.

    The state requires proof of eligibility, including:

    • documentation from a medical professional with the diagnosis or quarantine instructions for you or a household member;
    • notices or emails from a school or daycare center;
    • notices or emails from a county or state government ordering closure of a business or stay-at-home mandate;
    • notices or emails from entities you had a contract with, suspending your services due to COVID-19 related shutdown;
    • a firm offer or other documentation from a prospective employer showing a start date, hours, and pay rate for a job that has been cancelled or delayed.

    Weekly PUA benefits are calculated based on previously reported income. The minimum weekly PUA benefit is $195 and the maximum is $572. You’ll need to submit documentation of previous income with your PUA application.   This can include copies of recent paystubs or deposit receipts, 1099s, billing notices to customers, recent ads for the business, statements from customers, business licenses, ledgers, contracts, invoices, and/or leases.

  2. Stember Cohn & Davidson-Welling Wins Challenge to Pennsylvania Unemployment Regulation

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    Stember Cohn & Davidson-Welling (“SCD-W”) won a Pennsylvania Commonwealth Court case challenging an Unemployment Compensation (“UC”) rule that has unfairly kept many people from getting UC benefits.

    Many who are out of work depend on UC benefits to get by while they look for a new job. However, self-employed workers are not eligible for unemployment benefits.  These days, employees supplement their regular jobs with other income – for example, selling items on eBay or crafts on Etsy, freelancing, or driving Uber.

    Recognizing that part-time business owners depend primarily on their regular employment and are not truly self-employed, the state legislature long ago passed a “sideline business” exception to the self-employment bar to UC benefits. This law let certain sideline business owners collect UC benefits, which are supposed to be reduced by the net earnings from the sideline business.

    For a long time, Pennsylvania’s Department of Labor and Industry has used an outdated method to compute such net earnings. Rather than subtract all expenses from gross earnings, the Department calculated sideline net earnings as gross earnings minus the “costs of goods sold.” This formula was unfair because it stopped sideline business owners who sell services instead of physical goods from getting UC benefits, since they have no “costs of goods” to deduct.

    Our client ran an event planning business that actually lost money after expenses. Nonetheless, the UC Board of Review ruled that she could not get unemployment benefits because the gross earnings from her business (before she paid vendors, rented venues, and bought advertisements) exceeded her maximum weekly UC benefits.  The Board of Review relied on a regulation that was identical to one that the Pennsylvania Superior Court overturned more than 50 years ago.  For almost half a century, no one challenged the new regulation until SCD-W appealed to Pennsylvania’s Commonwealth Court.

    The appeals court agreed that that the rule creates unfair classifications among UC claimants. The court held that denying UC benefits to claimants with service businesses while granting them to sales business is unreasonable and contrary to the purpose of the UC Law, which is to help people who lose their jobs.  Now, employees who lose their jobs and run sideline service businesses are more likely to get UC benefits.

    SCD-W Attorney Daniel Berlin argued the case, V.S. Lerch v. UCBR – 748 C.D. 2017.  An article about SCD-W’s victory was published in The Legal Intelligencer on March 15, 2018.  See it here: Court: UC Board’s ‘Net Income’ Calculation Unfair to Some Claimants / PDF version.

  3. The Clock To Appeal A Benefit Denial May Be Ticking Faster Than You Think

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    In a unanimous opinion issued on Monday, December 16, the U.S. Supreme Court in Heimeshoff v. Hartford Life & Accident Insurance Co., sided with ERISA plans and their employer sponsors. The Court ruled that benefit plans subject to ERISA (i.e., most private healthcare and other benefit plans) can establish their own “reasonable” statute of limitations for participants to challenge benefit denials in court.  

    A statute of limitations is the amount of time allowed for claims to be made under a law or contract. Often times, state or federal laws say what the statute of limitations is for a legal claim. Other times, parties may agree about the statute of limitations. In this case, the applicable amount of time was set forth in the plan’s terms. The Court found that this practice is acceptable, so long as the amount of time is reasonable.

    This decision reiterates the importance of being aware of the amount of time available to file a claim in all cases, not just ones involving ERISA. When something happens in the workplace, the first thing on a person’s mind may not be contacting a lawyer. However, it is always wise to reach out to a knowledgeable employment or benefits lawyer sooner rather than later to ensure you are not missing your opportunity to enforce your rights. One of the first things a lawyer will do for you is research the time you have to act.

    This decision also reiterates the importance of reading and being aware of the contents of the summary plan description (SPD) for your benefit plan if you disagree with a claim determination. If you do not understand something, consider contacting a lawyer to walk through it with you. 

  4. Obesity discrimination violates the ADA

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    Good article on obesity discrimination:

    Is obesity a disease, or merely a condition?

    December 16, 2013 12:00 AM