States’ unemployment responses to the pandemic

Update 2 (17 Mar. 2020): At a video presser this afternoon, Gov. Evers announced that he would be proposing legislation to end the waiting week on unemployment benefits, waiving job search requirements for those quarantined, and making further changes to able and available status. There were no details or a written press release that I can locate. Gov. Evers indicated that the proposals would be released tomorrow, March 18th.

Update 1 (17 Mar. 2020): Slate reports that state unemployment websites and systems are crashing throughout the nation given the unprecedented number of people being laid off from jobs and filing unemployment claims.

As previously noted, Wisconsin’s Department of Workforce Development has offered a misleading, contradictory, and unsympathetic response so far to the pandemic.

Here are a few examples. In the FAQ provided to employees and employers, the following information is offered:

Q: I am required to attend a re-employment services session. I don’t want to go to a public location until the coronavirus has run its course. What will happen if I miss my session?

A: If you fail to attend your mandatory session, you will be denied unemployment benefits unless it is determined you had good cause for missing the session.

DWD could be stating here that being quarantined is good cause. Even better, DWD could say that these requirements are being suspended for all claimants for the time being because of the pandemic and the need to keep large gatherings of people to a minimum. Instead, in this response DWD is not doing anything that makes unemployment benefits actually useful and accessible during this pandemic.

Q: If an employee is in mandatory quarantine because of suspicion of having the coronavirus, will they be eligible for unemployment benefits?

A: They might meet the initial eligibility criteria but not the ongoing federal eligibility criteria, which require them to be able to work, available for work, and actively seeking suitable work.

Able and available — the unemployment issue in play here — is required by federal law in a general sense but is specifically defined and applied under state law. So, California is already allowing benefits under its own definitions and application of what able and available means.

In this FAQ, Wisconsin makes no mention at all of how its cumbersome work search and registration requirements will be massaged in light of a pandemic that is leading businesses across the board to shut down. Why should anyone be required to do four job searches a week, for instance, when work is disappearing faster than a squirrel chased by a cat or dog?

Even more troubling, the one Wisconsin program that directly addresses the economic slow-down created by this pandemic — work-share — was only mentioned in a FAQ for program partners, and that FAQ has since been removed from DWD’s website (a press release is still available).

The Department of Workforce Development has released a statement of scope for an emergency rule to modify DWD 127 — work search requirements and DWD 128 — able and available requirements. The only description of proposed changes in this document is:

The Department of Workforce Development proposes to amend DWD 127 to provide for an additional waiver of the work search requirement for the limited class of claimants who are job attached, otherwise eligible, and who are isolated or quarantined due to COVID-19. This will result in these claimants not being required to search for work during the isolation or quarantine period. The rule will also address work search actions for claimants.

The Department proposes to amend DWD 128 to provide for eligibility provisions related to the availability for work and work available requirements for claimants who are job attached, otherwise eligible, and who are isolated or quarantined due to COVID-19. These changes will provide that such claimants are considered available for work even though they are isolated or quarantined.

So, it is unclear what will happen to the numerous other requirements the Department maintains — like attending a job search seminar or registering on the job center of Wisconsin website — for claimants to be eligible for unemployment benefits.

Other states have been both more decisive and less encumbered in responding to the pandemic. Here is a description of some of those efforts.

Massachusetts

The Department of Unemployment Assistance for Massachusetts has already issued policy guidance that declares individuals in quarantine to be able and available for work. A bill has also been introduced to waive the one-week waiting period for the duration of the pandemic. Finally, emergency regulations create a category of “standby status” for claimants that automatically makes them able and available for work, considers “suitable work” to include being in quarantine for numerous reasons, and indicates that the pandemic provides good cause for claimants and employers for missing numerous filing and appeal deadlines.

Ohio

Unlike in Wisconsin, the FAQ in Ohio provides simple and straightforward answers on eligibility issues. For instance:

Question 3: If an employer lays off employees due to the loss of production caused by the coronavirus, will the employees be eligible for unemployment insurance benefits?

Answer: Yes, if the employees are otherwise eligible. An executive order issued by Governor DeWine expands flexibility for Ohioans to receive unemployment benefits during Ohio’s emergency declaration period.

Question 4: If an employee receives unemployment benefits as a result of a coronavirus-related business shutdown, will the employer’s unemployment taxes increase?

Answer: For contributory employers, charges during Ohio’s emergency declaration period will be mutualized. Reimbursing employers will follow existing charging requirements under Ohio Revised Code Chapter 4141.

Links and phone numbers for filing an unemployment claim are even provided at the bottom of the FAQ. And, an executive order from Ohio’s governor indicates that:

  1. Unemployed workers will include individuals requested by a medical professional, local health authority, or employer to be isolated or quarantined as a consequence of COVID-19 even if not actually diagnosed with COV-19; and
  2. Individuals totally or partially unemployed, or who are participating in the Shared Work Ohio Program will not be required to serve a waiting period before receiving unemployment insurance or SharedWork benefits; and
  3. Any benefit paid on these unemployment claims shall not be charged to the account of the employer who otherwise would have been charged but instead shall be charged to the mutualized account, except reimbursing employers; and
  4. Waiver of work search requirements shall include those individuals requested by a medical professional,local health authority or employer to be isolated or quarantined as a consequence of COVID-19 even if not actually diagnosed with COV-19; and
  5. Penalties for late reporting and payments will be waived for employers affected by COVID-19.

Washington

One of the states hit earliest in this pandemic, Washington has already issued emergency rules to expand coverage on a number of fronts. A chart is now available to explain when unemployment benefits can be offered:

Washington-Covid19 and unemployment benefits

Pennsylvania

Julia Simon-Mishel of Philadelphia Legal Assistance reports:

The PA Department of Labor and Industry has been very receptive to our recommendations and pro-active in addressing the public health crisis.

I have been in constant communication with the Deputy Secretary and the Appeals System Administrator. The Department has:

    • waived the waiting week
    • waived all work search requirements, including:
      • registration with the state job search website
      • weekly job searches
      • RESEA (all classes have been canceled)

       

 

Fortunately, our state law allows them to put a waiver in place and there was no hesitation to do that once the Governor declared a state of emergency.

PA UC law already provides coverage for workers who have quit jobs due to unsafe working conditions. There is also coverage for taking care of sick family members.

The Department is also working on language the will broaden who is considered “able and available” for work, as I have been concerned that people sent home for colds, or who have to watch their children because of school closings, would be considered ineligible. They have told us they will be as liberal as possible in granting benefits within the confines of DOL guidance.

At first we were told that all new PA UC Referee hearings will be scheduled as telephone hearings (ours are still typically in person). However, that was recently taken back by the administrator and we were informed they were cancelling hearings. We have launched strong objections to that and are hopefully that will not be the final decision.

One of our biggest concerns is that UC does not have the staffing to handle this crisis, especially if people need to work remotely. Unfortunately, our old mainframe computer system is not the most flexible, but they are working on a tool that would let them access it remotely, as well as setting up staff to field calls remotely. PA is currently in the middle of a benefits modernization project but our new system is not set to go live until October (if that even happens given the crisis). The Department will need to drastically ramp up staffing. The other major concern is that our web application is clunky and not mobile responsive. Workforce centers and libraries are closed, so people do not have access to computers outside their home. If folks cannot get through on the phones to file a claim, they will have no good way of filing. My organization is looking into ways to reallocate resources and pull in pro bono volunteers to help people file claims online during the crisis.

I am hearing non-stop from those working in the gig economy wanting to know if they can get benefits. In PA, that would be an uphill battle that would most likely end up in our state Supreme Court, as no earnings from gig companies are reported as wages. Therefore, unless a worker had enough separate W2 wages to qualify financially, they are shut out of this system. The other problem is people who do qualify from losing a full time W2 job but then start driving for UberEats, Grubhub, etc to help make ends meet. They constantly get disqualified by the lower level decision-makers. Our Department has refused to apply current precedent which holds that when workers engage in gig economy or short term work after losing their normal employment, it should not be disqualifying under PA’s “self-employment” provision (Lowman v. UCBR, 178 A.3d 896 (Pa. Commw. Ct. 2018)). The case is currently up on appeal to the PA SCT, we are waiting for a decision at any moment.

So, numerous states are being creative and acting quickly in light of this pandemic. Wisconsin, the state that invented unemployment insurance, seems to be dragging its feet.

Note: Political party is not indicative of these responses. Both Massachusetts and Ohio have Republican governors. Indeed, Mitt Romney has recently proposed giving $1000 to every US adult.

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