Being able and available when disabled: getting worse in the weekly certifications

In September 2020, I described how the able and available questions on the weekly certification ignored actual Department regulations. In short, the questions about being able or available for full-time work ignored key regulations that allow claimants to answer “yes” if they could work to the best of their ability the number of hours they were capable of working. So, a claimant who can only work 20 hours in a week because of a physical or psychological disability should answer yes to these questions as long as they are capable of working 20 hours in a week and do not restrict their ability or availability even further.

Rather than incorporating these regulatory requirements into these questions, the Department has doubled down on ignoring its own regulations.

Here is how the ability to work question read in July 2020.

And, here is how the question read in October 2020, a few weeks after my original post on this issue.

A fourth bullet point concerning childcare issues has been added, but the question itself is otherwise unchanged. As indicated previously, restrictions on an ability to work do NOT make someone unable to work full-time, especially when those restrictions arise from physical or psychological conditions.

Here is how the Department further revised these questions in April 2021. First the ability to work question.

The explanatory bullet points concerning the pandemic have been reduced to just two and the question itself has been changed to turn entirely on whether a person can work 32 hours in a week or not.

Nearly identical changes have been made to the available work question:

So, now the Department is requiring people to answer “no” if they cannot work 32 or more hours in a week, including when a person has medical restrictions that limit an ability to work. This question is legally wrong.

The relevant unemployment regulations do NOT reference medical restrictions. There is no reference at all in Wis. Admin. Code § DWD 128 to a claimant’s medical restrictions. Section DWD 128.01(3)(a) explicit states that the factors to be considered by the Department may include:

2. The nature of the restrictions caused by the claimant’s physical or psychological condition.

Per this regulation, an ability to work and a disabled claimant’s availability for work are based on whether a claimant has physical or psychological restrictions that mean he or she cannot work 32 or more hours in a week. And, according to these regulations, as long as that claimant is able and available to work that number of hours, he or she is able and available for full-time work. Again, from these same regulations:

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 [32 or more hours in a week].

So, these new questions are in direct violation of the Department’s own unemployment regulations.

Even worse, administrative law judges at unemployment hearings are asking disabled claimants for “evidence” regarding their “medical restrictions,” as if these weekly certification questions stated actual unemployment law and over-ruled the actual regulations that directly relate to this issue.

Understand as well that answering “no” to these questions based on what is being asked means that all benefit payments are on hold until the Department “investigates” this issue, which now takes around three to five months.

So, not only does this question not follow the Department’s own regulations, but it also now runs afoul of federal requirements for unemployment benefits to be paid “when due.” A recent federal court decision explains the nature and importance of this requirement:

It has long been recognized that protracted denial of subsistence benefits constitutes irreparable harm. See Morel v. Giuliani, 927 F.Supp. 622, 635 (S.D.N.Y. 1995) (finding irreparable harm where New York City regularly failed to provide “aid continuing” benefits, in violation of federal and state law), amended, 94-CV-4415, 1996 WL 627730 (S.D.N.Y. Mar. 15, 1996). To indigent persons, the loss of even a portion of subsistence benefits results in injury that cannot be rectified through the payment of benefits at a later date. See id. (collecting cases). The reason for this should be obvious. Subsistence benefits by definition are those that provide for the most basic needs. As such, when the outright denial or undue delay in the provision of subsistence benefits is at issue, courts have not hesitated to utilize the extraordinary remedy of preliminary injunctive relief. See, e.g., Willis v. Lascaris, 499 F.Supp. 749, 759–60 (N.D.N.Y. 1980) (enjoining reduction in food stamp allowances); Hurley v. Toia, 432 F.Supp. 1170, 1176–78 (S.D.N.Y. 1977) (granting preliminary injunction and staying enforcement regulation authorizing termination or reduction of public assistance benefits prior to affording hearing), aff’d, 573 F.2d 1291 (2d Cir. 1977); Boddie v. Wyman, 323 F.Supp. 1189, 1193 (N.D.N.Y. 1970) (“There is no doubt . . . that the differences sought in payments by the plaintiff are extremely important in respect to these things daily and in that sense when the day passes the injury or harm that may occur is irreparable.”), aff’d, 434 F.2d 1207 (2d Cir. 1970), aff’d, 402 U.S. 991, 91 S.Ct. 2168, 29 L. Ed. 2d 157 (1971).

That unemployment insurance benefits fall into the category of subsistence benefits cannot be credibly disputed. Indeed, the vitalness of unemployment insurance benefits is codified in New York Labor Law, which recognizes that “[e]conomic insecurity due to unemployment is a serious menace to the health, welfare, and morale of the people of this state.” N.Y. Labor Law § 501. This is all the more true against the backdrop of the current health crisis ravaging this nation—a crisis which has led to almost unprecedented unemployment across various sectors, including the app-based FHV industry.

Islam v. Cuomo, 475 F.Supp.3d 144, 153 (E.D. N.Y. 2020). Note: Wisconsin has similar statutory language concerning the economic insecurity created by unemployment in Wis. Stat. § 108.01(1).

Unemployment in Wisconsin is recognized as an urgent public problem, gravely affecting the health, morals and welfare of the people of this state. The burdens resulting from irregular employment and reduced annual earnings fall directly on the unemployed worker and his or her family.

Making the claim-filing questions worse — further ignoring unemployment law and adding additional delays to benefit payments — is ignoring how vital unemployment benefits are to those who have lost jobs through no fault of their own.

Note: my thanks to various workers for bringing these changes to my attention. Keep the tips coming.