Expanded State UI Eligibility and Conditional Experience Rating Relief for Employers

The Senate today passed an amended version of what was originally H.681, legislation to expand eligibility for Unemployment Insurance and provide some conditional relief for employers’ experience rating related to such UI benefits, by inserting the bill in another COVID-19 related bill, H.742.  The bill was originally passed by the House on the last day before the Legislature suspended normal operations in response to the COVID-19 crisis.  It is expected that the House will approve the Senate’s changes tomorrow and the bill should be quickly signed into law.

Expanded Eligibility for UI Benefits

Under the bill, employees will be eligible for benefits if they leave employment voluntarily “to self-isolate or quarantine at the recommendation of a health care provider or pursuant to a specific recommendation, directive, or order issued by a public health authority with jurisdiction, the Governor, or the President for one of the following reasons:”

  • the individual has been diagnosed with COVID-19.
  • the individual is experiencing the symptoms of COVID-19.
  • the individual has been exposed to COVID-19.
  • the individual belongs to a specific class or group of persons that have been identified as being at high-risk if exposed to or infected with COVID-19.

The employee would also be eligible if they are caring for a family member who, for the same reasons listed above, “is self-isolating or quarantining at the recommendation of a health care provider or pursuant to a specific recommendation, directive, or order issued by a public health authority with jurisdiction, the Governor, or the President”.

“Family member” means an individual’s parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild, or foster child.

The employee would also be eligible if they are caring “for a child under 18 years of age because the child’s school or child care has been closed or the child care provider is unavailable due to a public health emergency related to COVID-19”.

Finally, the employee would be eligible if they leave employment “because of an unreasonable risk that the individual could be exposed to or become infected with COVID-19 at the individual’s place of employment” or to care for a family member who leaves their employment for such a reason.

It is important that employers take note of the definition of an unreasonable risk above.  The bill states:  “An unreasonable risk that the individual could be exposed to or become infected with COVID-19 at the individual’s place of employment” shall include the individual’s place of employment being out of compliance with the Guidance on Preparing Workplaces for COVID-19 issued by the U.S. Occupational Safety and Health Administration (OSHA) or any similar guidance issued by OSHA, the U.S. Centers for Disease Control, or the Vermont Department of Health and any other conditions or factors that the Commissioner determines to create an unreasonable risk.

See the OSHA guidance here:

OSHA:  Guidance on Preparing Workplaces for COVID-19  

Also:

CDC:  Interim Guidance for Businesses and Employers 

Additional guidelines and resources can be found on AIV’s COVID-19 resources page at www.aivt.org.

The bill includes a number of provisions intended to avoid employees receiving UI benefits if they would be duplicative of paid sick leave or other paid benefits including federally mandated or funded leave, sick, or other benefits addressing the COVID-19 crisis.

Conditions for Relief from Employer Experience Ratings

Under the bill, employers’ experience ratings can be relieved from up to eight weeks of UI payments for employees under the following conditions:

  • the employer temporarily ceased operation, either partially or completely, in response to a request from a public health authority with jurisdiction that the employer cease operations because of COVID-19, in response to an emergency order or directive issued by the Governor or the President related to COVID-19, or because the employer voluntarily ceased operations due to the actual exposure of workers at that place of employment to COVID-19.
  • the employee becomes unemployed as a direct result of a state of emergency declared by the Governor or the President in relation to COVID-19 or an order or directive issued by the Governor or President in relation to COVID-19.
  • the employee has been recommended or requested by a medical professional or a public health authority with jurisdiction to be isolated or quarantined as a result of COVID-19, regardless of whether the individual has been diagnosed with COVID-19.

However, the employer shall only be eligible for relief of charges for benefits paid if the employers rehires or offers to rehire the employee within a reasonable period of time after the employer resumes operations, as determined by the Department, or upon the completion of the individual’s period of isolation or quarantine.

The Department is authorized to extent the eight weeks of available relief depending on circumstances.

Issues with the Bill

The bill addresses serious needs for employees and employers impacted by the COVID-19 crisis.  However, it also raises a number of implementation and compliance questions and issues for employers.  AIV will be working closely with the Department as it develops any necessary guidelines and regulations for administering and enforcing these provisions.  Under the circumstances, opportunities to amend the bill might be limited.  However, employers with questions, concerns, or recommendations on either implementing the bill as passed or identifying possible changes to purse, are strongly encouraged to contact us at info@aivt.org.

For reference, the following are some of the issues AIV is already discussing with the Department, along with some initial feedback:

The employee is or is caring for an individual identified as being at high risk.

The concern has been about how open this is.  Feedback from the Department is that there has to be a specific designation/directive that a group should isolate because of the high risk, such as if the Governor directs everyone over 65 to stay home.

The employee is exposed to an unreasonable risk of exposure at work.

The concern is making sure that employers are following the guidelines that demonstrate avoidance of unreasonable risk.  See the guidelines and definition of unreasonable risk above.

The employee is caring for a child 18 years or younger because their school or child care has been closed or child care provider is unavailable owing to COVID-19 public health emergency.

While this addresses a clear issue for working parents, there is still a concern that this is a broad category of employees given the current school and child care closures.  AIV will be working closely with the Department to recommend guidelines that balance the needs of parents and employers.

Employers have to have laid off employees at a request or directive, or if there was actual exposure in the workplace, to avoid experience rating impacts.

The concern is that this might not cover cases where employers act out of caution or in response to economic impacts related to COVID-19.  We understand that the state will be looking to assist these employers under expected federal disaster provisions independently of this bill.

If you have questions or recommendations regarding any of the issues discussed above, or other issues with the bill, please contact us at info@aivt.org.  AIV will provide updates as the Department engages employers on implementation and enforcement questions.