Employee Protections and Unemployment Claims in the Wake of the COVID-19 Pandemic and the CARES Act

April 15, 2020

Over the course of the last six weeks, life as Coloradans, Americans, and global citizens, has been turned on its head.  Only weeks ago, millions of us woke up on an average morning; brewed our coffee, got our families out the door, and headed to work.  For many of us, our jobs serve as more than just a “job.”  Instead, our employment provides a sense of self-identity, community, connection, and purpose in the world.  And in reality, our employment also provides for financial security to help us take care of our present needs, and plan for the future.  And now, in what feels like the blink of an eye, millions and millions of Americans watch as their careers, and their finances, plummet in the midst of the COVID-19 pandemic.  Over 16 million Americans have filed for unemployment benefits.

Have you been impacted by the Coronavirus in your employment or your finances?  If you are curious as to how Colorado and the federal government may provide relief to you through unemployment insurance benefits, please continue reading.

On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) was signed into law, providing trillions of dollars in economic support for our nation’s economy, businesses, and workers.  The CARES Act is a federal law that will provide federal dollars to unemployed or underemployed workers, to be administered by each individual state.

In the context of unemployment benefits, the CARES Act accomplishes two major paths of support for furloughed, laid-off, or jobless workers by 1) providing a benefit of $600 per week to unemployed workers, in addition to the weekly benefit conferred by the state of Colorado, and 2) extending the time period to receive unemployment benefits from 26 weeks to 39 weeks.

You will only be eligible for unemployment benefits (through the State and under the CARES Act), if you are unemployed through no fault of your own.  If you are unemployed due to some fault of your own (choosing to quit a job that is still open and operational without extenuating circumstances, getting fired for “cause”, or other reasons), you will not be eligible for state or federal unemployment benefits.  In order to receive the $600 additional weekly benefit under the CARES Act, you must first, be eligible to receive unemployment benefits per the criteria set out by the State of Colorado.  In other words, if you are ineligible to receive state unemployment benefits, you will not be able to receive $600 in federal benefits, either.

Unemployment Benefits through the State of Colorado

How to Apply

The first step to take in being sure you receive federal benefit, is applying for unemployment insurance through the Colorado Department of Labor and Employment (“CDLE”).  The “Extended Benefits WorkSheet”, located at https://www.colorado.gov/pacific/cdle/covid-19-workers, provides a user-friendly flow chart to help you determine your eligibility, the benefits for which you may be eligible, and guidance as to filing a claim.  The same link, also leads you to the yellow “File a Claim” button to begin your application.  Due to an overwhelming amount of people applying daily, you can only apply during the following times:

  • If your last name begins with a letter from A to M:
    • Tuesday or Thursday: 8 am to 4 pm
    • Saturday: 12 noon to 4pm
  • If your last name begins with a letter from N to Z:
    • Monday, Wednesday, Friday: 8am to 4pm

Be Thorough, Complete, and Specific

When applying, be prepared to provide information about all of the reasons you are no longer working.  The CDLE website suggests that if you have a lot of information to include, it is best if you type this information before you start the application, and copy/paste at the appropriate time.

form

Why does this matter?  For example, a worker may have been severely injured in a car collision in late 2019, and due to the personal injury, may have already applied for underemployment benefits due to doctors limiting the amount of hours that person can work per week.  On top of that, the worker may face furlough or layoffs due to the Coronavirus.  It is important to explain all of these reasons in the application, as consistency remains important in legal cases and to ensure full accuracy.  Another example, could be that an employer terminated a worker to silence the worker who was a whistleblower about the employer’s wrongdoing.  For that reason, theer employee may wish to apply for unemployment benefits, as she was terminated due to no fault of their own, and now, suffers additional burden, because finding replacement employment in the era of COVID-19, prevents the worker from finding a job.  In both examples, it is important to include all reasons contributing to your current status as unemployed.  Do be aware, that

How Much Money Will I Receive from Colorado Unemployment Insurance

The CDLE calculates your benefits by examining the total wages paid by all of your employers in the 12-month period prior to your separation from employment (called the “base period”).  Then, two different formulas are used to calculate your benefits using different metrics.  Of the two formulas, CDLE determines your final benefit amount that results in the highest weekly benefit amount to you; however, under formula one, your weekly unemployment benefit amount cannot exceed a payment in excess of $561 per week, and under formula two, your benefit cannot exceed a weekly payment in excess of $618.  Through your individualized calculations, you will not receive lower than $25 per week, and cannot receive more than $618, with a majority of individuals qualifying for some benefit amount in between that range.  You can use the interactive estimator or follow the formulas to estimate your weekly benefit here: http://www.coworkforce.com/uibEstimator/.  Keep in mind, that the reason(s) for your separation from employment might impact the benefit you receive.  It would be wise to utilize the CDLE website to determine the best time to file your claim.

Can I Work Reduced Hours at My Same Job, Work a Side Job, or “Gig” and Still Receive Unemployment benefits?

Yes.  In Colorado, you can earn up to 25 percent of your weekly benefit amount and still be paid your full unemployment weekly benefit payment.  After that, CDLE reduces your benefit payment by one dollar for each dollar you earn.

For example, if you currently work in a restaurant, and your hours have been reduced from 30 hours to 10 hours a week due to limited shifts with Colorado’s Stay-At-Home Order in place, you may still receive a weekly benefit through state unemployment, and supplement that weekly benefit by up to 25% in additional income, without reducing your benefit amount.  If your weekly benefit payment is $400 per week, you will continue to receive that through the state of Colorado, and can earn an additional $100 per week (25% of $400) at your same restaurant of employment.  Therefore, that week, you will receive $500 ($400 in unemployment benefits; $100 from your job).  On the other hand, if you make $300 one week at your restaurant job, you will have made $200 dollars more than the allowable 25% of your weekly benefit amount ($100).  Therefore, your unemployment benefit of $400 will be reduced by $200.

Unlike some states, if you earn above your weekly benefit amount in part, or in total, in any given week, you are not automatically stopped from receiving unemployment benefits in the following week, as long as your income falls back under your weekly benefit amount.  CDLE requires ongoing reporting and updating, so it is essential to continue to stay in contact to ensure you continue to receive benefits to provide financial assistance.

$600 in Additional Weekly Benefits through the CARES Act

Unfortunately, Colorado is still programming its systems to begin accepting claims for benefits related to the CARES Act. Given this very new legislation, a majority of states are still scrambling to figure out how they will begin to allocate federal dollars.  So far, only a few states have begun to pay the additional $600 weekly benefit – including New York, Alabama, and Missouri.  But don’t worry – Coloradoans won’t “lose out” on the additional weekly benefit while that state processes its programming.  Your potential $600 weekly benefit will be paid retroactively, to March 29, 2020.  After becoming eligible for unemployment benefits through Colorado (or if you were receiving unemployment benefits prior to the COVID-19 pandemic), you don’t need to take any action for the additional $600 benefit.

Unlike Colorado’s weekly benefit amount, which varies, due to your prior income and determination through the use of separate formulas, the CARES Act provides $600 across the board (no more, no less) to any eligible person.

How Does the Additional $600 Impact My Ability to Work and Supplement my Income?

As discussed above, answers to many questions about the workability of this plan in Colorado remain unanswered at this point.  However, it appears clear that the $600 benefit is additional to the weekly benefit you receive through the state.

Why does this matter?  In the example discussed above, the worker would receive $400 in weekly benefits through the state, with the ability to earn an extra $100 at her job, while still receiving full unemployment benefits.  It is likely, that now, with the additional $600, the worker’s total weekly benefit is $1000 ($400+$600).  Therefore, the worker can now earn $250 (25% of $1000) through a job or gig per week, instead of the $100 cap previously, without seeing a reduction in government benefits.  This now results in the worker having access to $1250 per week, instead of the previous $500.  That significant amount of money, both provided as a benefit, and allowed to be earned, may allow for a financial reality that feels much more like “normal” in uncertain times following Stay-At-Home Orders, closures, health concerns, and more.

Get Help Longer

The second major success of the CARES Act, is that it protects you for a longer period of time in the event you remain unemployed longer than expected.  Previously, in Colorado, a standard worker would only be able to receive weekly unemployment benefits for 26 weeks.  But now, due to concerns about the Coronavirus impacting the economy and job market for months to come, with the possibility of Stay-At-Home Orders continuing to limit job searches and potential employment, you may be able to receive support for an additional 13 weeks, for a total of 39 weeks of state and federal unemployment benefits.

There are also advantages to the new federal pandemic legislation, including encouraging state Governors to provide more relief to unemployed workers.  Colorado’s Governor, Jared Polis, signed orders that waive work search requirements during the pandemic, and that waives Colorado’s previous one-week waiting period to receive benefits.

Need Additional Assistance?

COVID-19 hasn’t just wreaked havoc on workers’ lives; employers are experiencing very real concerns, too, as they attempt to keep their businesses afloat and take care of their employees.  Our government continues to work to provide relief to employers, which in turn, can be paid-forward to support its workers.  For more information, check out this blog post detailing how employers may protect against lost profits, and thus, protect their employees:  https://www.omtrial.com/blog/covid-19-business-insurance-lost-profits.

However, there may be instances in which an employer terminates a worker through the guise of uncertainty due to the Coronavirus pandemic or crippling Stay-At-Home Orders, when in fact, an employer may be terminating a worker for improper reasons.  Here are some things workers can consider if they are separated from employment:

  • Layoff for improper reason – laid off due to your race, age, gender, disability; terminated to silence you from blowing the whistle on wrongdoing in the company;
  • Terminated without being paid wages and unused vacation hours in a timely manner (oftentimes due the next business day)
  • Consider requesting severance payment or negotiating the severance amount offered;
  • Complications with a personal injury impacting unemployment

If you believe you were terminated for an improper reason, were not paid what you earned in a timely manner, are experiencing difficulty due to an injury, wish to negotiate severance, or simply need assistance in navigating the nuances of receiving unemployment insurance benefits from Colorado and under the CARES Act, you may want to speak to an attorney.

Our Employment Attorneys at Ogborn Mihm, LLP, would be happy to talk with you.  We remain open and available with full force.  Our priority is helping employees navigate through difficult times with effective and trusted counsel.