Employment Law
From KatrinaLegalRelief
Assistance may be available to persons who become unemployed as a result of a disaster through disaster unemployment assistance (DUA) and/or state unemployment insurance (UI). An affected individual must use state unemployment benefits before being eligible for disaster benefits, although he or she may apply for both at the same time. DUA, also referred to as Disaster Relief and Emergency Assistance, is a federal program that provides temporary financial assistance to individuals unemployed as result of a major disaster declared by the President. Applications may be made through telephone (numbers listed below by state), but must be filed no later than November 30, 2005.
Disaster unemployment
What are the basic eligibility requirements for DUA?
There are two major requirements for an individual to qualify for DUA: 1) the individual must be out of work as a “direct result” of a major disaster; and 2) the individual must not qualify for regular unemployment insurance (UI) from any state. Once found to be eligible for DUA, workers must actively look for work and accept suitable work offered them. In addition, the individual must show that for every week he or she is collecting DUA, his or her unemployment continues to be the direct result of the disaster, not other factors.
How much are DUA benefit payments?
DUA benefits are paid in weekly checks. DUA recipients receive the same weekly benefits that they would have been entitled to had they qualified for unemployment in the state where they were employed. However, at a minimum, DUA benefits must be at least one half of the state’s average weekly unemployment benefits (minimum state amounts listed below). The DUA benefits for part-time workers are pro-rated based on the hours they worked as a percent of a 40-hour work week. DUA benefits are reduced by any other wage-loss compensation, including private insurance, Supplemental Unemployment Benefits, worker’s compensation, and a pro-rated amount of a retirement pension or annuity. The minimum weekly DUA benefits are $90 in Alabama, $113 in Florida, $97 in Louisiana, and $85.50 in Mississippi.
How long will DUA benefits last?
The maximum time for payment of DUA benefits is 26 weeks. However, payments cannot extend beyond the period when the disaster officially ends, which is about six months from the date the federal disaster was declared (that is, late February, in the case of the Hurricane Katrina disaster declared in Alabama, Mississippi, Louisiana and Florida). In addition, the DUA benefits cannot extend beyond the time when the recipient returns to work or self-employment or beyond the period when the individual’s unemployment is no longer directly related to the disaster.
Who can collect DUA?
Those who may be eligible for DUA (and typically could not get regular state UI benefits) include:
- Self-employed individuals who lost their businesses or suffered a substantial interruption of activities as a direct result of a major disaster;
- Unemployed individuals who have become the breadwinner or major supporter of their households due to the death of the head of their household directly related to the disaster;
- Individuals unemployed as a result of an injury caused as a direct result of a disaster;
- Individuals who cannot reach their employment as a result of the disaster;
- Individuals who were scheduled to start work but became unemployed because they no longer have a job as a direct result of a disaster.
Are workers who run out of regular unemployment insurance eligible to receive DUA?
No, not if the individual was laid off before the disaster, which means that their unemployment was not originally caused by the disaster as required for the federal benefit. However, if the individual’s unemployment was originally caused by the disaster and his or her regular state unemployment runs out before the disaster period ends, then the individual may qualify for DUA. This is especially important in several Hurricane Katrina states where regular UI benefits often end before the standard 26 weeks, depending on the individual’s income and work history. For example, the minimum duration of regular state unemployment benefits in Alabama is 15 weeks, 13 weeks in Mississippi, and 21 weeks in Louisiana. Note that the individual’s DUA benefits will always expire when the disaster period official ends.
Are workers who did not work in the disaster area also eligible for DUA if their unemployment was still directly caused by the disaster?
There are very limited situations where workers outside the disaster area can qualify for DUA if they were laid off due to their employer’s loss of substantial revenue from contracts with businesses located in the disaster area. However, according to federal regulations adopted after the September 11th attacks, the employer or self-employed individual must have received at least a “majority of its revenue or income from an entity that was either damaged or destroyed in the disaster.” In addition, the individual must continually establish that their unemployment remains directly related to the major disaster.
What steps should an individual take to apply for DUA?
As of September 26, 2005, the United States Department of Labor has increased the normal 30 day filing deadline to November 30, 2005 for all Hurricane Katrina-related claims.
What documents are needed to apply?
The DUA application requires proof of employment and earnings, as well as a Social Security Number. The Department of Labor also is allowing people 90 days to file paperwork for assistance. For self-employed applicants, copies of tax returns are required as proof of income and self-employment. If verification of employment or other documents requested as part of the DUA application are not available, a sworn statement including other forms of verification can be submitted. Interim DUA payments can take place while the necessary documentation is gathered.
Where can an individual apply for DUA?
Each state may process DUA somewhat differently. Most states will process applications by telephone, as part of their automated telephone claims taking process for regular state unemployment benefits, and some state DUA applications may be processed through the Internet. If an individual is having problems filing for DUA directly by telephone or other means with the state where the disaster occurred, the individual can file an “interstate” claim in another state where he or she has relocated. These are claims that are processed by another state, but otherwise still involve most of the same rules that apply to workers applying for DUA in their home state.
For the latest information on how to file for DUA in states declared disaster areas as a result of Hurricane Katrina and in neighboring states where evacuees are relocating, we recommend that individuals and their advocates regularly check recent postings on the state’s disaster coordination website and the U.S. Department of Labor’s website listing states services available in response to Hurricane Katrina. Below is a listing of the DUA application contact numbers posted by several of the impacted states. We caution, however, that some of these contact numbers may not always provide all the necessary application information. Thus, we urge workers to regularly consult the state and federal websites referenced above for current information.
- Alabama: 1-866-243-5382
- Georgia: 1-877-709-8185
- Florida: 1-800-204-2418
- Louisiana: 1-800-818-7811 or 1-866-783-5567 or1-800-LAHELPU
- Mississippi: 1-888-844-3577
- Texas: 1-817-420-1600
Source: National Employment Law Project (last updated September 6, 2005).
State unemployment compensation
A person who has become unemployed as a result of a disaster may be eligible for unemployment benefits, generally based on the person's length of employment. A person must exhaust these benefits before they are eligible for disaster benefits.
Who is eligible for state unemployment insurance?
Generally, an applicant must be unemployed and registered to work at a local Employment Services Office, must be able to work, and must be available for work. In addition, the applicant must have covered wages in at least two calendar quarters, must serve a one week waiting period, can be partly disqualified if job loss was due to simple misconduct without a warning, can be totally disqualified if he or she quit without good cause, lost a job for misconduct after warning, failed a drug test, did something dishonest, or refused employment without good cause.
What if an applicant is denied UC or DUA benefits?
Applicants have the right to appeal a decision within 15 days from the date on the notice. A form for appealing the decision should be sent with the determination. At the hearing, the applicant will have an opportunity to explain to the appeals referee why he or she is entitled to UC or DUA. Applicants should bring witnesses and documents in support of their case.
Source: Alabama Legal Services Manual
Employment-related health and pension benefits/COBRA
Many employers provide group health insurance for their employees and dependents. After a disaster, group coverage may end because the employee relocates, his or her job is terminated, or because the employer is no longer in business. Employees who are no longer covered by a company policy are entitled to continue coverage under a program known as COBRA. However, the premiums may be significantly higher than premiums under the group plan.
Affected individuals should make a choice as soon as possible. Federal laws provide that once a person goes without health insurance for a period of sixty three (63) days, health providers may exclude coverage for preexisting conditions. See 29 U.S.C. 1181; Treas. Reg. § 54.9801-4(b)(2); 29 C.F.R. § 2590.701-4(b)(2); and 45 C.F.R. § 146.113(b)(2) (2004).
What health insurance options are available to individuals whose employers were closed as a result of Hurricane Katrina?
If an employer has discontinued all of its health care plans, COBRA rights are no longer available and employees will have to seek other coverage. If that employee was a member of an affiliated network of other employers who have not been destroyed by Hurricane Katrina, however, the health plans maintained by those other employers should extend to grant COBRA rights to hurricane victims. Individuals without COBRA rights are encouraged to do the following:
Convert their group plan to an individual plan. Again, however, individuals should be warned that this course of action is likely to result in higher premium payments and less coverage.
Some individuals may also qualify for special enrollment in their spouses' health plans under the portability provisions of HIPAA. The Employment Benefits Securities Administration (EBSA) is continuing to make decisions with regards to health coverage questions in the aftermath of Hurricane Katrina. Individuals are encouraged to visit the EBSA's website for updates at http://www.dol.gov/ebsa.
How can an evacuee determine what impact the Hurricane has had on their employee benefit plans?
The U.S. Department of Labor's Employee Benefits Security Administration announced recently that it has launched a Web site providing contact information on employee benefit plan sponsors whose operations have been disrupted by Hurricanes Katrina and Rita. Employers who sponsor benefit plans are being encouraged to update their contact information with the department if it has changed so that "employees, plan participants and their families, as well as the many other support organizations assisting victims of the hurricanes, to reach plan administrators with questions and information related to their retirement and health benefits."
The Website will include a searchable data base that lists pre-hurricane contact information garnered from the Form 5500 Annual Reports filed previously by all employee benefit plans located in the affected disaster areas
Also, the IRS has provided a summary of laws governing Hurricane Katrina relief under KETRA: "Tax Favored Treatment for Early Distributions from IRAs and other Retirement Plans for Victims of Hurricane Katrina."
What health insurance options are available to individuals whose employers did not close, but who are no longer employed?
COBRA applies to employers with 20 or more employees and extends to employees who have been involuntarily terminated for reasons other than gross misconduct. Employers must notify their employees of their COBRA rights, which guarantee individuals the right to purchase health coverage for up to 18 months at their employer's group rate. Once notified, employees have 60 days to accept coverage under COBRA but it should be emphasized that such coverage can be expensive. In fact, individuals under COBRA are responsible for paying up to 102% of the coverage premiums. For more questions on your rights under the U.S. COBRA law, visit http://www.dol.gov/ebsa/newsroom/fscobra.html.
What if an individual is unable to pay health insurance premiums?
On September 1, 2005, Mississippi Insurance Commissioner George Dale issued a press release directing all insurance companies doing business in Mississippi to grant a 60-day grace period for the payment of premiums on all types of insurance policies. Therefore, depending on the policy language, if there is coverage "as long as premiums have been paid," there may not be a problem. It is, however, up to the insurance companies to comply. Individuals should contact their insurance companies directly with any questions regarding their specific policies. For contact information regarding a specific insurance company, visit http://www.disasterinformation.org/findins.htm.
The America’s Health Insurance Website is also maintaining updated information on measures that are being implemented by various insurance companies to help assist members affected by Hurricane Katrina. Such information includes contact numbers and help-lines for individual companies as well as information regarding premium payment grace periods and other specific concessions. There is currently information on eighteen major insurance providers, which can be accessed at: www.ahip.org/HurricaneResponse/.
What access do victims of Hurricane Katrina have to funds held in IRA’s, 401(K)’s, and other similar deferred compensation accounts?
On Monday, September 12, 2005, the Senate Committee on Finance proposed a tax relief package intended to allow displaced hurricane victims to dip into their 401(K)s and individual retirement accounts without penalty. Congress is expected to move quickly to enact the plan, under which the ordinary 10% early withdrawal penalty will be waived for people whose primary residence is located in a federally-declared natural disaster site. People who choose to withdraw these types of funds should be aware that they will still owe regular income tax on the withdrawals; however, payment of those taxes can be spread over a period of up to three years. In addition to the penalty waiver, the proposed package doubles the permissible loan limit to 100% of a person’s account balance or $100,000.00, whichever is less.
While this information may only pertain to people with personal retirement plans, the proposed package also includes significant tax exemptions that will likely benefit all hurricane victims. If the package is approved, all taxpayers affected by Katrina will receive a $3200.00 personal tax exemption. In addition, people housing hurricane victims will receive a $500.00 exemption for each individual housed, up to a total of $2000.00. Finally, the deductible mileage rate for people using their own vehicles for charitable work will be raised to one half of the standard business mileage rate of around $0.48 per gallon.
What public health benefits may be available to storm victims?
Families who reach certain poverty levels may qualify for TANF - temporary assistance for needy families. Those families who qualify will be able to obtain Medicaid benefits for themselves and their children. Families with children under eighteen (18), very few resources and low income are encouraged to apply. To see if you qualify for Medicaid, visit http://www.dom.state.ms.us. In addition, children of families above the poverty level may qualify for coverage under the Mississippi Children’s Health Insurance Program (CHIP). See discussion in benefits section.
Absence from employment for medical or family reasons
Under the Family and Medical Leave Act (FMLA), an employee may take up to 12 weeks unpaid leave because of a serious medical condition, or to care for an immediate family member (spouse, parent, or child) with a "serious health condition." During those 12 weeks, the employee's group health benefits through the employer will still be in effect, though other benefits of the employment may not. Additionally, under the Americans with Disabilities Act (ADA), an employee may be entitled to job leave if he or she is disabled and if the granting of the leave would serve as a reasonable accommodation to the disability. Individuals should also check individual state statutes to see if additional leave protection is available for pregnancy or short-term disability leave.
Who is eligible for leave under the FMLA?
Not all employees are eligible under this federal law. The employee must have worked at a covered employer at least 1,250 hours in the past 12 months to be eligible. To be covered, an employer must employ at least fifty employees within 75 miles of the applying employee's worksite.
Is there any way to get paid leave under the FMLA?
The FMLA provides an option for employers to choose to make employees use accrued paid leave. Check with your employer to determine their policies.
How should an employee apply for leave under the FMLA?
Usually, an employee must provide his or her employer with at least 30 days notice before taking an FMLA leave. However, if the need was not foreseeable, then the employee must simply provide notice as soon as practicable; often this means some sort of verbal or written notification within at least one to two days of the time when the need for the leave becomes known.
What documentation is required for leave to be granted?
The employer may ask the employee to provide medical certification to document the need for an FMLA leave; a copy of the medical certification form - WH-380 - is available in the forms section of this guide. If the employer was the individual injured, then the employer may also request a statement from a doctor that the employee is well enough to return to work.
Can an employee be fired for taking medical leave?
No, an employee cannot be fired for going on leave under the FMLA.
Who is eligible for leave under the ADA?
The ADA applies only to those employors with 15 or more employees for each working day in each of 20 or more calendar work weeks in the current or proceeding year. An employee is "disabled" within the meaning of the ADA if the employee has a physical or mental impairment with substantially limits one or more "major life activities," such as walking, seeing, hearing, speaking, breathing, learning, working, sitting, standing, lifting, or reaching. Generally, temporary impairments, such as pregnancy, are not protected disabilities under the ADA.
Job Searching and Assistance
What assistance is available to hurricane victims looking for a job?
Individuals in any county in Mississippi which has been declared a disaster area may benefit from a new program which will seek to employ 10,000 displaced workers for the recovery effort. Jobs will involve providing food, clothing, shelter, and humanitarian assistance for victims, as well as demolition, renovation and reconstruction of destroyed public structures, facilities, and lands. To apply for one of these jobs, fill out the application available in the forms appendix and either take it to your local WIN Job Center and mail it to:Mississippi Department of Employment Security, ATTN: Temporary Recovery Jobs, Post Office 1699, Jackson, MS 39215-1699 or fax it to: 601-321-6598.
The US Department of Labor also runs the Job Career One-Stop Center, which is a federal job matching program. This is available to all workers - not just those in disaster-affected areas. Those interested may either go to or call 1-877-US-2JOBS.
Finally, the State of Mississippi encourages all those searching for employment in Mississippi to look for jobs online at http://www.jobsearch.org/MS. Job seekers may also attend a Governor's Job Fair; information and dates are available at http://www.jobfairs.ms.gov/index.html.
