The Continued Assistance Act had a rocky signing, but it is now law and some details are starting to emerge.
As with this pandemic, there are numerous programs, and it is vital that you keep the distinctions clear for yourself. So, first determine which unemployment benefit applies to you and then read the section for that specific benefit.
And, then read about the other benefit programs, as those will likely affect you as well at some later point if not immediately.
Returning to work notices
In response to largely fictionalized concerns over workers refusing to come back to work, notice requirements about refusing work are now mandated.
Wisconsin already has had generalized notices in place, and has actively been encouraging workers to report any and all work refusals so as to deny claimants eligibility. For example, the Department provides this advice to employers:
If an employee decides not to return to work when the business re-opens, are they eligible for unemployment?
In most cases, no. Unemployment benefits are available to individuals who are totally or partially unemployed due to no fault of their own. In this example, the individual—not the employer—is choosing not to work and, therefore, would be ineligible. However, the facts of each circumstance are important. An investigation would be conducted to determine if the employee would still be eligible. Please see the Claimant Handbook Part 6 Eligibility Issue, Common Disqualifications.
How do I notify UI that an employee had refused to return to work?
UI Employers can report individuals who are filing for UI but have refused a job offer by visiting https://unemployment.wisconsin.gov/employerfeedbackform.
You will choose “Report Individual Who Refused Work” and be prompted to answer several questions regarding the individual who refused the work, and the job offer itself. A confirmation email is sent to the person submitting the information. The reported information is sent to a UI Job Refusal Mailbox, prompting the creation of an eligibility issue on the individual’s claim that will need adjudication.
UI Employers can also contact the UI Help Center (Employer Assistance Line), (414) 438-7705.
Whether workers are actually refusing returning to work remains to be seen, especially since Wisconsin’s partial unemployment eligibility is a financial boon to workers who do return to work (as long as that work is still not full-time).
Interestingly, this provision also requires the Department to provide claimants accused with refusing a return to work with a plain-language notice that includes:
- Summary of state UC laws regarding an individual’s return to work;
- Statement about the individual’s rights to refuse to return to work or to refuse suitable work;
- Explanation of what constitutes suitable work under state UC law;
- Explanation of the individual’s right to refuse work that poses a risk to the individual’s health or safety (if permissible and as defined under state law); and
- Instructions for contesting a denial if the denial is due to a report by an employer that the individual refused to return to work or refused suitable work.
Finally, you can refuse a return to work and remain eligible for PUA benefits if:
- you are diagnosed with COVID-19 or have symptoms of a COVID-19 infection,
- you are caring for a family member or a member of your household diagnosed with COVID-19,
- you have primary care-giving responsibility for a child or person who cannot attend school or another facility because of the pandemic and so you cannot abandon that care-giving responsibility, or
- a government agency or a medical provider has told you to quarantine
The $300 PUC
There is now a new $300 PUC payment for 11 weeks, starting with the week ending 1/2/2021 through the week ending 3/13/2021 for anyone receiving PEUC, PUA, EB, or regular unemployment benefits.
This $300 PUC is automatic as long as the claimant is receiving some other unemployment benefit for these weeks.
Pandemic Emergency Unemployment Compensation (PEUC)
PEUC benefits are extended an additional 11 weeks, from the week ending 1/2/2021 through the week ending 3/13/2021. But, these additional weeks cannot be paid for any weeks prior to the week ending 1/2/2021.
A phaseout time period is now available to those claimants receiving PEUC benefits who have not yet exhausted those benefits as of the week ending 3/13/2021. These claimants can continue receiving PEUC benefits for additional weeks until the week ending 4/10/2021.
Because with every new quarter PEUC payments are halted or slowed while state agencies investigate claimants’ potential eligibility for regular unemployment benefits, there is now a program in place to allow state agencies to continue paying PEUC benefits in certain circumstances.
Individuals may be eligible to continue to receive PEUC instead of regular UC if all of the following criteria are met:
Criterion #1: The individual has been determined to be entitled to PEUC with respect to a benefit year;
Criterion #2: The benefit year with respect to which the PEUC entitlement had been established (i.e., the parent claim) has expired after the date of the enactment of the Continued Assistance Act (December 27, 2020);
Criterion #3: The individual has remaining entitlement to PEUC with respect to such benefit year; and
Criterion #4: The individual would qualify for regular UC in a subsequent (new) benefit year and the WBA for regular UC in the new benefit year would be at least $25 less than the WBA payable on the individual’s PEUC claim.
UIPL No. 17-20 Change 2 (31 Dec. 2020) at 6-7. Essentially, this criteria means that a person can continue to receive PEUC benefits rather than regular unemployment benefits if that person still has weeks remaining on their PEUC claim, their current benefit year does not expire until after 27 Dec. 2020, and the total weekly benefit amount in regular unemployment benefits is $25 less than what they are entitled to with their current PEUC benefits.
This program letter spells out various options for how state agencies can apply this option. See UIPL No. 17-20 Change 2 (31 Dec. 2020) at 7-11.
NEW — Mixed Earners Unemployment Compensation (MEUC)
Many independent contractors found themselves eligible for regular unemployment benefits because of side jobs they had. Those regular unemployment benefits were much lower than what they would have earned from the self-employment, however.
So, a new, optional benefit has been created for these self-employed workers, and Wisconsin has said it is adopting it.
Under this program, claimants who have more than $5000 in self-employment income for the calendar year previous to when their initial claim starts will be eligible for an additional straight $100 per week on top of their regular unemployment (or PEUC or EB) benefit. See UIPL No. 15-20 Change 3 (5 Jan. 2021) at 4-5.
The documentation to establish the $5000 in self-employment income is nominally a tax return.
If available, individuals must provide a copy of the income tax return for the most recent taxable year ending prior to the individual’s application for regular UC to substantiate their self-employment income for purposes of establishing eligibility for MEUC. If the tax return is not available (e.g., because the individual has not yet filed the income tax return yet), acceptable documentation of self-employment income include, but is not limited to, pay check stubs, bank receipts, business records, ledgers, contracts, invoices, and billing statements that substantiate self-employment income of at least $5,000 during the most recent taxable year ending prior to the individual’s application for regular UC.
Individuals may submit this documentation at any time while the MEUC program is in effect. States may wait to make an eligibility determination for an MEUC application until documentation is provided. Or, states may provide individuals a reasonable amount of time, as provided under state law, to submit this documentation after they apply for MEUC. However, until the individual provides the documentation and the state can determine that it substantiates that the amount of self-employment income meets MEUC eligibility requirements, MEUC payments may not begin.
Unfortunately, this MEUC benefit is only payable for weeks ending 1/2/2021 through the week ending 3/13/2021 — 11 weeks in all.
Finally, MEUC payments are counted for determining income for Medicaid coverage Children’s Health Insurance Program (CHIP). See UIPL No. 15-20 Change 3 (5 Jan. 2021) at 5.
Note: Per § 2104(h) of the CARES Act, PUC benefits are NOT counted for Medicaid and CHIP.
Pandemic Unemployment Assistance (PUA)
There are many changes and updates.
- The new calendar quarter that started in January 2021 does not mean that all PUA payments have to be put on hold while the Department investigates potential eligibility for PEUC benefits. States like Wisconsin are now allowed to continue paying PUA benefits for four more weeks while the state determines potential eligibility for PEUC benefits.
Obviously, claimants who receive PUA benefits in lieu of PEUC benefits cannot later claim PEUC for those same weeks.
This lag period (or hold harmless period) realistically only applies to those receiving PUA benefits because they have exhausted their eligibility for regular unemployment benefits and then suffered a pandemic-related job loss. After all, claimants who initially are only eligible for PUA benefits cannot ever receive PEUC benefits. So, this lag period option will not matter to the self-employed or the SSDI recipients who are getting PUA benefits, since they are ineligible for regular unemployment or PEUC benefits in the first place. Still, this lag period is helpful to claimants in W2 covered employment who are receiving PUA benefits because they lacked sufficient benefit year earnings.
- New initial claims for PUA benefits filed after Dec. 27th can only be backdated to a job loss on Dec. 1st at the earliest.
- A phaseout period is now available to those claimants receiving PUA benefits who have not yet exhausted those benefits as of the week ending 3/13/2021. These claimants can continue receiving PUA benefits for additional weeks until the week ending 4/10/2021.
PUA claimants are eligible for this phase out period if their PUA claim is eventually considered to be “live” for the week ending 3/13/2021.
There is now an additional documentation requirement for PUA claims. Claimants will have to provide documentation regarding their employment, self-employment, or the job offer/work they were slated to start for any weeks PUA weeks for the week ending 1/2/2021 or later.
- New PUA claims filed on Jan. 31st or later will have to provide that documentation within 21 days of the claim.
- Continued PUA claims or initial PUA claims filed prior to Jan. 31st will have 90 days to provide this documentation.
In most cases, documentation submitted to provide proof of income should be enough. But, those claimants receiving PUA benefits because of a withdrawn job offer or loss of work may need to provide additional documentation. Here is what the program letter spells out for this requirement:
In general, proof of employment includes, but is not limited to, paycheck stubs, earnings and leave statements showing the employer’s name and address, and W-2 forms when available.
Proof of self-employment includes, but is not limited to, state or Federal employer identification numbers, business licenses, tax returns, business receipts, and signed affidavits from persons verifying the individual’s self-employment.
Proof of employment with organizations such as the Peace Corps, AmeriCorps, and educational or religious organizations includes, but is not limited to, documentation provided by these organizations and signed affidavits from persons verifying the individual’s attachment to such organizations.
Proof of the planned commencement of employment includes, but is not limited to, letters offering employment, statements/affidavits by individuals (with name and contact information) verifying an offer of employment.
Proof of the planned commencement of self-employment includes, but is not limited to, business licenses, state or Federal employer identification numbers, written business plans, or a lease agreement.
Individuals must present the proof of employment and the state may verify the proof submitted using records the state may have available, such as wage records or state revenue records.
* * *
Unlike the documentation requirement to receive a higher WBA, documentation to substantiate employment or self-employment need not cover the entire period in which an individual was working. States have discretion to determine if the documentation an individual submits substantiates an individual’s employment, self-employment, or planned commencement of employment or self-employment.
UIPL No. 16-20 Change 4 (8 Jan. 2021) at I-10 to I-11. Claimants who fail to provide this requested documentation will be liable for repaying PUA benefits only for weeks ending 1/2/2021 and later. “This is because the individual cannot be ineligible for a week of unemployment ending before the date of enactment solely for failure to submit documentation.” Id. at I-12.
There is also a new weekly re-certification requirement specifying that, for each week claimed, the pandemic-related reason for PUA-eligibility, effective the week ending 2/6/2021, must be provided.
Note: Wisconsin has already mandated this requirement for PUA claimants. See the PUA weekly certifications at the post that has Wisconsin’s claim-filing forms.
But, benefits are NOT to be denied for prior weeks solely for failing to submit this weekly certification by states that made a good faith effort to implement PUA program for those prior weeks. See UIPL No. 9-21 (30 Dec. 2020) at 9; see also UIPL No. 16-20 Change 4 (8 Jan. 2021) at I-15 to I-16. So, Wisconsin may well be denying benefits to claimants pre-maturely and without legal justification.
Over-payments of PUA benefits can NOW be waived if the claimant is not at fault for the mistaken payment and repayment would be contrary to equity and good conscience (i.e., the claimant cannot afford repayment at this time). As Wisconsin’s over-payment standard is based on the Department making an error of some kind when there is no claimant fault, this equity and good conscience should apply for over-payments of PUA benefits:
If a state UC law provides for the waiver of overpayments but does not include a provision defining “equity and good conscience” the state must use the following provisions for equity and good conscience, when assessing whether an individual overpayment may be waived.
»It would cause financial hardship to the person from whom it is sought;
»The recipient of the overpayment can show (regardless of his or her financial circumstances) that due to the notice that such payment would be made or because of the incorrect payment either he/she has relinquished a valuable right or changed positions for the worse; or
»Recovery could be unconscionable under the circumstances.
States that choose to waive overpayments under Section 201(d) of the Continued Assistance Act must notify all individuals with a non-fault overpayment of their ability to request a waiver. The notification must include how to request the waiver.
Waiver determinations must be made on the facts and circumstance of each individual claim, blanket waivers are not permissible.
Update (16 Feb. 2021): The Department has a program tracker page for the Continued Assistance programs. Unfortunately, the news is NOT good.
Extended PEUC benefits are NOT slated to be available until March 4th. The new PUA benefits are not slated to be paid until April 21st, well after the end date of March 13th and even after the phaseout period ending on April 10th. And, MEUC benefits will not be available until April 28th, four months after the program was supposed to start.