Being able and available when disabled

Just one example of where the Department ignores the unemployment law it is supposed to be following.

Numerous SSDI recipients are being denied PUA benefits because they are not answering a question the way the Department wants that question answered. The question:

Before this question and guidance is examined, let us first examine what the actual legal requirements for full-time work (aka being able and available) are for the purpose of unemployment benefits. Department regulations define being able and available as:

(3) Able to work.
(a) Able to work means that the claimant maintains an attachment to the labor market and has the physical and psychological ability to engage in some substantial gainful employment in suitable work. During any week, a claimant is not able to work if the claimant is unable to perform suitable work due to a physical or psychological condition. In determining whether the claimant is attached to the labor market and able to perform suitable work, the department shall consider all factors relevant to the circumstances of the case, which may include the following:

1. The claimant’s usual or customary occupation.
2. The nature of the restrictions caused by the claimant’s physical or psychological condition.
3. Whether the claimant is qualified to perform other work within the claimant’s restrictions considering the claimant’s education, training, and experience.
4. Occupational information and employment conditions data and reports available to the department showing whether and to what extent the claimant is able, within his or her restrictions, to perform suitable work in his or her labor market area.

(4) Available for work.
(a) Withdrawal from labor market. Available for work means that the claimant maintains an attachment to the labor market and is ready to perform full-time suitable work in the claimant’s labor market area. An individual who has a physical or psychological restriction and is found able to work under sub. (3) shall not be considered unavailable for work solely because of inability to work, provided the individual is available for suitable work for the number of hours the individual is able to work. During any week, a claimant is not available for suitable work if he or she has withdrawn from the labor market due to restrictions on his or her availability for work. In determining whether a claimant has withdrawn from the labor market, the department shall consider one or more of the following factors:

[factors skipped].

Example 1: A claimant has a number of physical restrictions due to recent surgery, including a restriction to work no more than 20 hours per week for 2 months. With the restrictions, the claimant cannot perform the duties of his or her usual occupation but is able to perform a number of jobs for which he or she has prior training and experience. The claimant is willing to do these jobs and is willing to work 20 hours per week. The claimant has no other restrictions to availability. Benefits will not be denied solely because of the inability to work full-time.

Example 2: A claimant is restricted to working 30 hours per week due to medical problems. The claimant is still able to perform the duties of his or her usual occupation. However, the claimant is unwilling to work more than 20 hours per week because the claimant is receiving Social Security benefits and more than 20 hours of work would reduce those benefits. Benefits will be denied until the claimant is available for 30 hours of work per week.

DWD 128.01(3) and (4) (emphasis supplied).

The key phrases here are “in some substantial gainful employment” and an “individual who has a physical or psychological restriction and is found able to work under sub. (3) shall not be considered unavailable for work solely because of inability to work.” As long as a person can work to what their physical and psychological limitations will allow, they are able and available for full-time work the purpose of unemployment law.

The provided examples in the regulations explain these points. In the first example, the employee’s work is limited because a recent surgery prevents him or her from working more than 20 hours in a week. That person is still able and available for full-time work of 20 hours, even though this number is less than 32 hours in a week. In the second example, the employee is limiting hours of work because of a financial consideration rather than his or her disability. So, that person is NOT able and available under these regulations. If the person worked 30 hours a week rather than limiting him or herself by choice to only 20 hours a week, then he or she would still be able and available for purposes of unemployment law.

This attention to individual workers’ own circumstances is why being able and available for full-time work varies from individual worker to individual worker. Everyone should answer YES to this question when they can work their normal hours, as set by their physical or psychological disabilities. As long as the work is, for unemployment purposes, substantial gainful employment, then that work qualifies, whether 32 hours a week or just 12 hours a week.

The Labor and Industry Review Commission has on numerous occasions reinforced this point. See Tunisha Perkins, UI Hearing No. 11605816MW (11 Jan. 2012), Kouimelis v. Dennys Restaurant 6318, UI Hearing No. 12201489EC (4 Dec. 2012), and Wright v. Independence First Inc., UI Hearing No. 09607759MW (8 March 2010). There is no legal dispute that being able and available for full-time work depends on the individual worker’s own, specific abilities and that work restrictions based on physical or psychological disabilities are NOT disqualifying.

The Department, however, does not explain any of these issues with this question. Indeed, the Department apparently does not accept these issues as actual unemployment law, as the Department-provided explanation in this question of being able and available for full-time work simply does not square at all with the state’s unemployment law: the explanation here simply offers a flat out denial of eligibility to anyone who has restrictions on his or her work. As a result, many disabled folks think, because they are disabled and so restricted in their work options, that they must answer “no” to this question.

Furthermore, when Department staffers investigate these mistaken answers to this question, they ignore the regulations cited above and tell claimants that full-time work only means working 32 or more hours in a week. Even many administrative law judges will only look at this issue in this light and in complete disregard of these regulations and Commission case law (unless this law is pointed out to them).

So, disabled folks and anyone else with physical or psychological restrictions of their work should always answer Yes to this question about being able to work full-time. If you normally work 12 hours a week because of your disability and can still work 12 hours a week when unemployed, then for the purpose of unemployment law you are able and available for full-time work.

That the Department fails to provide correct information on this issue and then enforces its own legally incorrect able and available standard against the disabled is just one more example of how the Department continues to discriminate against the disabled.

Note: As evident with the Covid-19 related explanations in this question for how to answer “yes” and hence still qualify for unemployment benefits, the Department obviously knows how to provide legally correct guidance on an issue when it wants to. The question is why the Department will not provide correct guidance to the disabled.

If unemployment in this state is going to improve, then illegal questions like this one and countless others need to be fixed. And, the Department staffers responsible for this wrong advice need to take responsibility for these mistakes. Indeed, the entire on-line filing process needs to be redone from top to bottom as well as made public to everyone and not just claimants when they file their claims. Keeping this information from public scrutiny has for too long been the priority for the Department. The Department is supposed to help claimants in their unemployment eligibility, not constantly pursue goals to keep claimants from becoming eligible in the first place.

Update (2 March 2021): added graphic for post.