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.

Ability to work question in July 2020

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

Ability to work question as of October 2020

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.

Ability to work question in April 2021

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:

Work availability question in April 2021

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.

Job searches are back

Update (21 May 2021): The Department has announced on its job search FAQ that the four job search actions per week will NOT apply to claimants receiving PUA benefits.

No job searches for claimants receiving PUA benefits

Note: If your PUA eligibility changes or the circumstances connected to your work search waiver change, then you WILL be required to do job searches, including for weeks that have already passed. So, having the job search requirement waived for now does NOT mean it might apply to you later for weeks that have already happened.

The Joint Committee for Review of Administrative Rules met today and voted to immediately suspend the waiver of job search requirements and pandemic-related able and available provisions contained in EmR2106.

Here is what claimants need to know.

Four job search actions are required starting Sunday, May 23rd

Starting Sunday, May 23rd, all claimants will need to do four job search actions every week. What are those actions?

possible job search actions and the proof required for that action

Notice that the Department now expects claimants to retain (for 52 weeks!) their job search records and provide proof for each job search action (for those 52 weeks!).

Even if you cannot do a weekly claim certification at the moment (for instance, because your PUA benefits are on hold), you should still do four job searches and keep records of those searches for any week starting on May 23rd or later.

The work search log files are available here in DOC and PDF formats. More directions for how to complete these forms are available here.

When filing your weekly claim certification, you will be prompted with the following screen:

Weekly work search entry form

After “agreeing” to these requirements, you are then prompted to begin entering each work search action:

Work seach action reporting form

As already noted, keep your job search records for one year, as the Department audits all job searches at some point and has up to a year to do an audit of any claimant after that claimant starts filing his or her weekly certifications. In other words, the Department is sure to audit your work searches at some point. Indeed, at the public hearing today, Department representatives stated that more than 75% of work search reviews lead to weekly certifications being denied.

Loss of pandemic-related able and available provisions

Besides waiving the four job search actions in a week requirement, EmR2106 also provided some important waivers of able and available requirements related to the pandemic. Those provisions are also gone as of May 23rd, and so workers will need to be able and available for work regardless of any pandemic-related concerns.

Workers receiving regular unemployment benefits or PEUC benefits who have Covid-19 symptoms or who are quarantined by a medical provider will now need to report to work regardless of the impact on their health or public health in general.

Update (20 May 2021): Broke out the above paragraph into two, fixed some typos, and added emphasis in places.

Other ‘job search’ requirements

Job center of Wisconsin registration

This registration requirement has remained unchanged and unaffected by the pandemic. Once done, your job center of Wisconsin registration should look like:

Successful job center registration

After a certain number of months, you will need to renew this registration.

Job search training seminar (RESEA)

This attendance requirement has remained in place throughout the pandemic. As noted previously, the Department switched from attending an in-person seminar to a seminar done through e-mail, on-line communications, and phone calls.

Able and available during the pandemic

In late March 2021, the Labor and Industry Review Commission released Lewis v. Skogens Foodliner Inc., UI Hearing 20012206MD (26 March 2021), concerning being able and available for work when the pandemic started. The decision is whether a person who was a high-risk, vulnerable individual for severe illness because of Covid-19 remained able and available when she stayed away from work because of the pandemic with the support of her employer and pursuant to the orders of her doctor.

The Commission found that the employee, as a high-risk individual who was not subject to a clear instruction from an employer to return to work, remained able and available for work and so eligible for unemployment benefits.

The reasoning and factual finding is straightforward. But, until this decision appeared, all appeal tribunal decisions on the question of being able and available during the pandemic have denied eligibility.

In part, the difficulty of this issue in appeal tribunal decisions and initial determinations rested on the complex and haphazard history of how Wisconsin responded to the pandemic. To that end, Lewis provides a clear and understandable narrative that connects these responses to unemployment law and regulations and how claimants who are vulnerable to the pandemic acted reasonably when they stayed out of their workplaces (with the support of their employers).

During weeks when the emergency safer-at-home orders were in place, the Commission explains:

Section 7 of the Safer at Home Orders urges elderly people and those who are vulnerable as a result of underlying health conditions to stay home. Order #94 defines “people over 60 years of age” as vulnerable. The employee is 70 years old and suffers from respiratory issues. She is therefore “vulnerable” within the meaning of the Safer at Home Orders.

Emergency Order #7 and DWD Emergency Rule 2006 require the department to consider a claimant available for work if the claimant is quarantined (under Emergency Order #7) or instructed to stay home (under DWD Emergency Rule 2006) under government direction or guidance due to COVID-19 and the employer has not provided clear instruction for the employee to return to work. Such is the case here.

Lewis at 5. And, for the weeks when there was no emergency safer-at-home order, the Commission reasons:

In order to be considered available, a claimant must maintain an attachment to the labor market, be ready to perform full-time suitable work in the labor market, and must not be withdrawn from the labor market due to restrictions on his or her availability for work. A claimant is presumed to be able to work and available for work unless there is evidence that, in the relevant week, the claimant was not able to work or available for work. Wis. Stat. § 108.04(2). In determining whether an employee has withdrawn from the labor market, the commission considers, among other things, whether the claimant has placed “unreasonable restrictions on working conditions.” Wis. Admin.Code § DWD 128.01(2)(7) [should be 128.01(4)(a)(7)].

The employee is a vulnerable individual, as recognized by the Safer at Home Orders. She is at heightened risk for severe complications, should she contract COVID-19. The employee was instructed by her physician not to return to work that requires direct physical contact with the general public, due to her risk of severe illness from COVID-19. The employee remained willing to accept work that does not require that she have direct contact with the general public. The work that she is available to perform does not require special training or experience because she is available for all work with the only limitation being that she cannot work directly with the general public.

The employee has maintained an attachment to the labor market. She is ready and willing to perform full-time suitable work. Under the circumstances, the employee’s restriction on working conditions was not unreasonable.

An employee who is out of work during the COVID-19 public health emergency due to being at high risk of severe illness from COVID-19, but who is willing to accept work that does not put him or her at higher risk of contracting the virus, has not imposed an unreasonable restriction on working conditions, and is available for suitable work.

Lewis at 6 (footnote replaced with statutory reference).

Here is to hoping that the Department and its administrative law judges begin to follow Lewis. Indeed, the Department should re-open prior initial determinations that denied unemployment benefits to claimants who stayed home because of the pandemic. Claimants who have health conditions that made them vulnerable to severe illness because of Covid-19 and who avoided work either with the permission of their employer or because of a medical provider’s order remained able and available for work.

Credit and applause to JSO for handling this case and passing it on to me.

For those who need to look up the various legal documents cited in Lewis.

  • Emergency Order #7 (18 March 2020) and in effect until 9 May 2020: amending state unemployment able and available law and requirements in light of the pandemic.
  • Emergency Order #12 (24 March 2020) and in effect until 24 April 2020: the state’s first safer-at-home order, which closed numerous businesses, directed how other businesses could remain open, and directed that residents and workers stay at home when possible.
  • Emergency Order #28 (16 April 2020) and in effect until 13 May 2020, when struck down in relevant part in Wisconsin Legislature v. Palm, 2020 WI 42: the state’s second safer-at-home order, which closed numerous businesses, directed how other businesses could remain open, and directed that residents and workers stay at home when possible.
  • Emergency Rule 2006 (9 May 2020) and in effect until 6 Feb. 2021: amending state able and available law and requirements in light of the pandemic.
  • Emergency Rule 2106 (11 Feb. 2021) and in effect until 10 July 2021: amending state able and available law and requirements in light of the pandemic.
  • Executive Order #94 (10 Nov. 2020): recommends that vulnerable individuals should avoid Covid-19 health hazards and so continue to stay home.

Able and available during the pandemic

It has taken almost a year, but there is now a decision from the Labor and Industry Review Commission about being able and available during the pandemic.

This case involves a part-time tour guide for the Capitol. When the pandemic struck, the Capitol building was closed to the public, those tours stopped, and she was laid off.

She applied for unemployment and, when contacted by the Department, explained that, as a 75-year-old woman with underlying health conditions she was concerned about working in a safe environment in the midst of the pandemic.

The Department subsequently denied her claim, asserting that her desire for a safe workplace was an unreasonable decision to restrict her availability.

At her hearing, she explained that she did not know how to respond to a hypothetical job offer for which the relative safety of that hypothetical job was unknown. She did explain that had the Capitol tours continued, she would have continued to work there, as she knew that this work would have been safe. But, she declined to volunteer as an election worker during the April 7th primary, as she did not think that work environment was sufficiently safe for her.

In his decision, an an administrative law judge affirmed her disqualification for NOT being available for work during the pandemic.

The administrative law judge first reviewed Emergency Rule 2006 (expired as of 2 February 2021), which created specific regulations for those with Covid-19 symptoms NOT reporting to work.

DWD 128.01 (7) Covid-19.
(a) Notwithstanding any other subsection in this section, the department shall consider a claimant to be available for suitable work if the claimant is perceived by an employer as exhibiting COVID-19 symptoms preventing a return to work, or the claimant is quarantined by a medical professional due to COVID-19 symptoms, or the claimant is instructed to stay home under local, state or federal government direction or guidance due to COVID-19, and one of the following applies:

1. The employer has instructed the claimant to return to work after the employee no longer exhibits symptoms, after a set amount of time to see if the disease is present, or after the quarantine is over.

2. The employer has not provided clear instruction for the claimant to return to work.

3. The claimant would be available for other work with another employer but for the perceived COVID-19 symptoms preventing a return to work or but for the quarantine.

(b) This subsection shall be good cause for not reporting for an eligibility review under s. DWD 128.03.

As obvious from this text, this exception is limited to what an employer does, a quarantine ordered by a medical provider, or a government public health order that mandates someone not report to work. So, this rule does not apply to this claimant.

The administrative law judge then explained:

In this case, the employee has not regularly worked 32 hours per week for several years. Her avoidance of working the polls on the April election day does not make her unavailable for work. However, she was not working full-time before her layoff and she is not applying for new jobs. As she would not work at a new job unless she determined the job to be safe, the full picture presented is that she is withdrawn from the full-time labor market and is not available for work.

The claimant appealed to the Labor and Industry Review Commission. In an exceptional brief by the clinic’s student coordinator, Emma Wood, she explained that everything about the claimant’s concern for a safe workplace as a 75-year-old woman was reasonable in light of the risks she faced from Covid-19 and that work searches were waived for the pandemic. The law student wrote:

To determine that [the claimant] is unavailable for suitable work because she desired safe work is to say that she is required to accept dangerous work. This is in direct contradiction of the federal and state imposition of the duty of employers to provide a place of employment free from known hazards. 29 USC § 654(a)(1), Wis. Stat. § 101.11(1). A preference for safe work should be considered at least as “understandable” as a salary preference. See, Willert, UI Hearing No. 88-401443MN (LIRC February 23, 1989).

In a decision dated 29 Jan. 2021, the Commission reversed the disqualification. The Commission wrote (footnotes replaced with citations):

As a general rule, to be eligible for unemployment insurance benefits as to any given week, a claimant must he able to work, available for work, and actively seeking work during the week. [Wis. Stat. § 108.04(2)(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. [Wis. Admin. Code § DWD 128.01(3)(a)] “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 labor market. “Full-time work” means work performed for 32 hours or more per week. [Wis. Stat. § 108.02(15s)] However, an individual with a physical or psychological restriction will not be considered unavailable for work solely because of his or her inability to work full-time, provided the individual is available for suitable work for the number of hours the individual is able to work. [Wis. Admin. Code § DWD 128.01(3)(b) cited, but should be Wis. Admin. Code § DWD 128.01(4)] 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. [Wis. Admin. Code § DWD 128.01(4)(a)]

Under Wis. Admin. Code § 128.01(2), an employee claiming unemployment benefits is presumed able to work and available for work, unless evidence is obtained that the claiming employee was not able to work or available for work. In her brief, the employee argues she is available for full-time work and correctly notes that her work searches were waived under the emergency administrative rule, ER2006, approved by the rule-making committee of the legislature. The commission conferred with the ALJ who conducted the hearing as to his credibility and demeanor impressions. The ALJ noted the employee was very credible and direct in her testimony and did not try to avoid any questions the ALJ asked of her. Without any contrary evidence to rebut the employee’s testimony, the employee is presumed able to and available for suitable work in her labor market. The commission’s reversal of the ALJ’s decision is based on the unrebutted presumption that the employee was able to and available for work within the meaning of Wis. Admin. Code § DWD 128.01(2) and not any differing credibility assessment.

This Commission decision does NOT accept what the claimant contended — that she had a reasonable belief in wanting a safe workplace. Rather, the Commission holds that the presumption of being able and available was not overcome in this case in light of the pandemic and Emergency Rule 2006, which waived job search requirements.

Still, this decision is important, because it shows that the Department’s efforts to disqualify a part-time worker in light of their history of part-time work is not sufficient to disqualify someone.