DOL Says Idled Gig Workers Can Collect Unemployment

By Braden Campbell
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Law360 (April 20, 2020, 7:01 PM EDT) -- The U.S. Department of Labor has clarified guidance on the recent emergency unemployment expansion after Democratic lawmakers criticized its advice to state benefits administrators, saying app-based drivers and other "gig workers" whose work has slowed due to COVID-19 can collect.

Independent contractors who experience "a significant diminution of work as a direct result of COVID-19" can collect benefits under the Pandemic Unemployment Assistance program even if they have some work, DOL congressional liaison J. Joseph Wheeler said Friday in a letter to the lawmakers. Wheeler also said workers who can't work because they have coronavirus symptoms and are seeking a diagnosis can collect, among other things.

Wheeler responded to Senate Finance Committee Ron Wyden, D-Ore., and other Democrats who had questioned early April guidance to state unemployment administrators. He framed the agency's body of guidance as a work-in-progress Friday.

"The department welcomes another opportunity to provide insight into previous, current, and ongoing work on this front," Wheeler wrote.

The DOL's letter answers several questions about eligibility under the PUA, a part of last month's $2 trillion Coronavirus Aid, Relief and Economic Security, or CARES, Act that made more money available to more workers who were displaced by the pandemic. In addition to boosting payments to displaced workers, the law provides benefits to independent contractors who can't normally collect when they're out of work.

The DOL has put out several pieces of guidance since the law's late March passage, including two April 5 letters to the state workforce agencies that review unemployment applications.

Wyden, Senate Minority Leader Chuck Schumer, D-N.Y., and 32 other Democrats wrote the DOL last week to raise concerns that "narrow and ambiguous" language in the unemployment letter could lead states to deny benefits to contractors and other workers Congress meant for the law to protect.

For example, the DOL in one hypothetical said a worker who has to quit their job because they have "tested positive for the coronavirus or [have] been diagnosed" could collect. That does not "make crystal clear" that a worker doesn't have to have a positive test to be considered diagnosed under the law, as Congress intended, the lawmakers said.

The DOL did not mean for this and other examples to be a comprehensive list of eligibility triggers under a provision of the law providing benefits to workers who are diagnosed with COVID-19 or "experiencing symptoms … and seeking a medical diagnosis," Wheeler said Friday. Along those lines, quitting because of a positive test or diagnosis is not the only way to become eligible under language providing benefits to workers who are "unemployed, partially unemployed, or unable or unavailable for work" because of the pandemic, Wheeler said.

The lawmakers also criticized an example in which the DOL said a nonemployee ride-hailing driver may not be able to collect unless "he or she has been forced to suspend operations" because of COVID-19, including because of a government order. That interpretation leaves out drivers who "have seen demand for their services dry up" because of the virus, they said.

That section "established additional criteria to cover gig workers" but did not disrupt prior guidance that drivers are eligible if they're "partially employed" because of the virus, Wheeler said, citing an unemployment FAQ on the DOL's website.

Wheeler said the DOL will soon issue more guidance, including answers to common state questions about the April 5 letters. Senior officials will hold a webinar with state agencies on Wednesday, he added.

Wyden thanked the DOL for its response Monday.

"I appreciate the Labor Department making crystal clear that workers Congress intended to cover get the assistance they need to keep food on the table and a roof over their heads," he said.

--Editing by Alanna Weissman.

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