Where Is the Care in the CARES Act?

PUBLISHED

Noah Zatz is a Professor of Law at UCLA School of Law.

PUBLISHED

Noah Zatz is a Professor of Law at UCLA School of Law.

Two pandemic policy stories have been coming to a head: (1) the push for another relief bill as a key CARES Act unemployment insurance benefit expires on July 31, and (2) the ongoing national child-care crisis as school closures for the fall are announced amidst the virus’ resurgence. What connects them is kids’ needs for care and families’ needs for economic support when they—predominantly mothers, of course—perform that caring labor. A little-noticed feature of the CARES Act supports care for children who must stay home due to school closures.

Despite its title, the CARES Act takes an excruciatingly indirect route to supporting caregiving. These contortions reflect the deep-seated reluctance to recognize and value caring labor. Instead, the Act reflects the dominant approach—including within most progressive politics—of devoting resources to caregiving only to the extent that can be reframed as achieving some other goal: freeing up parents or other caregivers to do “real” work in the paid labor market, delivering education, delivering health care, etc.

Currently, the CARES Act supports caregivers via several exceptional provisions that expand pre-pandemic unemployment insurance (UI) programs. There are two building blocks: Pandemic Unemployment Assistance (PUA, which expands eligibility) and Pandemic Unemployment Compensation (PUC, which adds $600 per week for those eligible). (This guide from the National Employment Law Project provides a broader review of pandemic UI.)

PUA builds on but extends the traditional UI approach of protecting “deserving workers” who become and remain unemployed “through no fault of their own.” The most widely discussed feature of PUA is its protection of paid work beyond conventional UI’s narrow focus on “employment.” By including independent contractors, PUA engages the “gig worker” controversies over misclassification and definitions of employment

With regard to care work, however, PUA’s key intervention lies not along the employee/contractor divide within forms of paid market work but instead along the divide between market labor and invisible, often unpaid nonmarket work. Normally, UI requires what’s known as “continuing eligibility,” which establishes that an unemployed worker remains attached to the labor market; they simply cannot find a new job despite being “able and available” to take one. Previous forms of disaster unemployment relief loosened these requirements for workers who could not reach their regular workplace due to the disaster, or because of their own disaster-related injury. PUA incorporates similar provisions for COVID-19 workplace closures and workers with COVID-19, but it goes much further.  The PUA statute also waives the conventional UI obligation to seek and accept employment if someone is “providing care” to family members with COVID-19 or has “primary caregiving responsibility” for a family member who must stay home due to COVID-19 closures of schools and child-care facilities. Thus, school closure is directly tied to PUA eligibility: if schools are open, family caregiving evaporates as a basis for eligibility, even if a parent keeps their child home for health reasons.

Notwithstanding these valuable provisions explicitly invoking care, PUA resists framing its benefits as support for caregiving itself. Instead, it treats benefits as replacing wages lost to care. This wage replacement framework fits especially awkwardly with another crucial liberalization in PUA eligibility. Normally, another pillar of UI receipt is “monetary eligibility,” which basically means a recent record of market earnings on which employers paid payroll taxes. PUA dispenses with this prior earnings requirement, too, consistent with its goals of covering independent contractors, misclassified workers, and those working off the books. This approach goes much further than previous approaches that bypassed the usual prior earnings requirement during disasters only in narrow cases involving people scheduled to begin work after the disaster struck or entering the labor market because of the disaster. In the PUA context, dispensing with monetary eligibility requirements altogether means that people who, pre-pandemic, were full-time caregivers or otherwise out of the labor market are potentially eligible; neither lack of recent paid work nor ongoing pandemic-related caregiving excludes them.

PUA’s waiver of the prior earnings requirement is intertwined with how it sets benefit levels; this provides the connection to the expiring PUC. Ordinarily, UI’s benefit levels achieve “wage replacement” set at a fraction of the recent earnings that established monetary eligibility; often this is 50% of weekly wages up to some cap. But without that benchmark available for claimants with no earnings record, PUA substitutes a flat benefit set equal to half the state’s average traditional UI benefit. The result would normally be weekly benefits under $200—and thus well below the poverty line.

These low benefit levels, finally, are where we get to Pandemic Unemployment Compensation (PUC), the most controversial feature of the CARES Act unemployment benefit provisions. PUC adds an additional $600 in weekly benefits for all current UI recipients, including those receiving PUA. For those eligible for PUAs flat benefit for lack of recent earnings, as well as for low-wage workers, PUC’s extra $600 may quadruple or more the value of their unemployment benefits. It is PUC that expires on July 31 and is at the center of the fight over the next relief bill, as progressive forces rally to #Savethe600.

Stepping back to the big picture, PUA and PUC together provide robust economic support in the neighborhood of $800 per week for those providing nonmarket pandemic-related care. Unlike the one-time cash payments also in the CARES Act, PUA/PUC are specifically linked to the provision of nonmarket care, they are integrated into a program for deserving “workers,” and yet they are fully available to people with no recent paid work and who currently reject paid employment. In other words, PUA/PUC seems functionally equivalent to a program of direct, substantial financial support for caregiving without making that support derivative of labor market attachment.

Strikingly, however, PUA goes to great lengths to submerge this caregiving support within the framework of wage replacement. Formally and institutionally, it is embedded within an unemployment program, focused on what claimants aren’t doing – working for pay – and not on what they are doing.  Thus, benefit eligibility is generally described as being for people who are “unemployed, partially unemployed, or unable to work” and limited to “the weeks of such unemployment.”  More technically, the provision for caregiving during school closures limits eligibility to closures where “such school or facility is required for the individual to work.” Here the statute clearly conveys that caregiving matters not because it meets critical needs but simply because it interferes with the normative gateway to material resources: wage labor.

The U.S. Department of Labor’s guidance on PUA likewise attempts to shoehorn PUA into the wage replacement model. In the same paragraph it acknowledges that PUA dispenses with past earnings requirements, it nonetheless declares, baselessly, that a claimant “must have experienced a loss of wages and hours or was unable to start employment following a bona fide job offer.” This complements a broader assertion that claimants “must have an attachment to the labor market,” as is the case with traditional UI. This concept has some statutory basis, as even PUA’s broad provisions for pandemic caregiving apply only to claimants who are otherwise able to work and available for work.” In principle, then, eligibility requires that, absent the specific need for pandemic caregiving, the claimant would be looking for paid work. Actually applying that standard, however, may require mighty feats of hypothetical reasoning, and I am not aware of any decisions applying this concept nor research on how state UI agencies have implemented it.

This indirect and grudging support for pandemic caregiving has implications beyond the purely ideological. First, it invites challenges to caregivers’ labor market attachment. Particularly vulnerable may be those with sporadic employment histories and no specific employer that recently laid them off or rescinded a job offer. Second, PUA support might also be denied to caregivers whose paid jobs are available outside of normal school hours, such as someone with a paid evening shift that does not directly conflict with providing daytime care during a school closure. PUA might, in other words, demand the proverbial “second shift.”

A variant on the second-shift problem arises for claimants who can continue their paid job from home while combining that with caregiving.  PUA specifically excludes anyone who “who has the ability to telework with pay.” USDOL guidance provides an exception where pandemic caregiving “requires such ongoing and constant attention that it is not possible for the individual to [also] perform [paid] work at home.” But this demanding standard does not capture the degradation of productivity—with potential impacts on future retention, advancement, pay raises, and so forth—that results from split attention and frequent interruptions. Nor does it address the burden created by shifting daytime paid work to children’s sleeping hours.

Directly valuing pandemic caregiving would avoid these problems while being more conceptually sound. As others have noted, it is grossly misleading to characterize what has happened as “the economy” shutting down. The “economy” has always included tremendous amounts of essential work performed outside the market form. The pandemic, however, has engendered a massive additional shift of caregiving work from collective, paid forms to fragmented, unpaid forms performed largely within families and predominantly by women. The mechanics of disease transmission make collective forms of care much more difficult. We should conceptualize the responsive, more fragmented forms of care not only as valuable to those receiving care but also as a valuable means of containing the pandemic; distancing requires extensive additional labor currently rendered invisible and excluded from the social means of distributing life-sustaining material resources.

Without attempting to work out the details here (but tracking arguments developed elsewhere), I close by simply noting that valuing nonmarket pandemic care can complement, even reinforce, support for paid pandemic care provided through institutions such as schools and child-care centers. When caregiving can shift to those institutions provided they have sufficient space, staffing, protective equipment, technology, and so forth, the funds otherwise supporting nonmarket caregiving can follow, and vice versa.  In other words, the school closure problem and the pandemic caregiver problem share a common root: resistance to valuing care.

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