Claim filing after the pandemic

In late 2022, it is time to see what has happened in Wisconsin with unemployment claim-filing.

Note: The charts presented here are from the Unemployment Insurance Data Explorer, which takes DOL unemployment data obtained from the states and provides a quick way to see what this data means.

Why claims are denied

First, some basic facts need to be introduced. Far too many people think that unemployment claims are approved or denied because of a dispute over a job separation between employee and employer.

That has not been the case since the Great Recession, however. Since before 2014, most initial determinations have denied a claim for reasons that have nothing to do with a job separation reason.

The green line on this chart shows the proportion of initial determination denials that are based on a job separation reason. From 2013 to 2015, roughly 20% of denial reasons were because of a dispute over the job separation. By 2016, that percentage was down to just over 10% and stayed there until the pandemic. Then the percentage climbed steadily to around 30% of all denials. This increase was because the Department examined all lay-offs arising from the pandemic for a prior disqualifying separation within a claimant’s benefit year to find a reason for denying that pandemic-related layoff claim. Yes, even though experience-rating charges were supposed to be waived during the pandemic, the Department still looked for disqualifying reasons from a prior job loss in which to deny eligibility.

So, with the pandemic now over, denials based on separations have declined markedly. With the hot job market, separation reasons are now below 10%.

So, the real story of why claims are denied has nothing to with a dispute between employer and employee over the job separation. The red line showing non-separation reasons is where most denials now happen. In 2013, over 40% of the initial determinations denying a claim were for reasons that had nothing to do with a job separation, and this percentage began climbing steadily due to new job search requirements, the move to on-line only claims-filing for initial claims and weekly certifications, and confusing and legalistic guidance about claim-filing. By 2016 to 2017, that percentage had climbed to 60%, but fell back down to just over 50% by 2018 (with no change in the law, election year anyone?). In 2019, still without any changes in law, the percentage began climbing again and was back at around 60% when the pandemic started. Yikes.

With the pandemic, this percentage declined back down to 2013 levels of just over 40%. In 2021 and 2022, however, there has been a rapid rise in these non-separation denial reasons, and Wisconsin is back at around 60% of all initial determination denying eligibility for non-separation reasons.

So, for many years now, the hurdle for eligibility has had little to do with job separation reasons and much to do with satisfying Department claim-filing requirements.

The true significance of the role of non-separation reasons can be seen in what happens per initial claim.

Note: An initial claim is what a claimant files to report a job loss for which he or she wants to claim unemployment benefits. No benefits are paid, however, based on an initial claim. Claimants must then file weekly certifications (called continuing claims in other states) for each week they want to be paid unemployment benefits. Because initial claims start an unemployment claim, they measure job losses and the claimants affected by those job losses. Weekly certifications, on other hand, only measure the number of people still successfully filing unemployment claims or who are still seeking to file such claims.

Outside of a slight dip in the pandemic and a recent increase in 2022, the green line for separation reasons hardly changed at all. The red line for non-separation reasons, however, began to nearly double in 2015 from 25% to almost 50%. By 2018, this denial rate for initial claims had declined slightly to just over 40%. And, there was a steep decline that began in 2019 just before the pandemic struck, and that steep decline continued into the pandemic, such that in 2020 the denial rate was almost the same as the denial rate for job separations. Since then, however, the denial rate for non-separation reasons for initial claims has sky-rocketed and is nearing 80% by the end of 2022. Together with the separation denial rate for initial claims climbing slightly to 15% at the end of 2022 (a seasonal climb every fall because, you know, winter), nearly 95% of initial claims were being denied at the end of 2022. Wow!

Just what are non-separation reasons

So, separation reasons (misconduct, substantial fault, or quitting a job without good cause) are not why the Department is finding the vast majority of claimants not eligible for unemployment benefits. The real reason the Department is finding claimants not eligible for unemployment benefits has to do with non-separation reasons.

Non-separation reasons usually are reasons directly related to a claimant not satisfying Department-mandated eligibility requirements. Other than an increase in job searches (from two to four in 2011) and the Department-initiated end of winter work search waivers, these mandates have been unchanged legally since before 2010. What has changed significantly is how the Department has implemented these requirements. Here is what has been happening since 2013.

The red (able and available for work), yellow (satisfying job search requirements), and green (other) have gone up and down dramatically over the past ten years.

Since 2016, able and available requirements have led to nearly 30% of all determinations being a denial. This large number of denials is happening because the Department ignores its own legal requirements for determining able and available.

Since 2015, denials because claimants fail to satisfy job search requirements have hovered over 40% and even over 50% except for a rock-like drop at the end of 2021 (discussed below). The job search requirements are leading to all of these denials through a combination of factors, notably the fact that all job searches must be reported on weekly certifications, and that mandated RESEA training and job registration are on-line only, even though the on-line guidance and assistance for accomplishing these goals are meager at best.

Other denial reasons — a catchall category — was at an over 40% denial rate in 2013, but declined steadily to around 15% by 2017 outside of a significant bump to around 25%/30% when the pandemic started. This denial category has been declining since then, however, and is approaching 10% by the end of 2022.

The impact of these changes can truly be seen when looking at these reasons per initial claim.

Both the job search (yellow line) and able and available (red line) plunged when the pandemic started, only to begin steep climbs in 2021. By the end of 2022, able and available reasons were leading to the disqualification of nearly 25% of all initial claims and job search issues were leading to the disqualification of over 45% of initial claims. These two reasons alone account for approximately 65% of all initial claims being denied at the end of 2022.

To understand just what is going on with these numbers, here are Wisconsin’s actual numbers for the second quarters of 2020 (57,466 initial determinations issued) and 2022 (59,564 initial determinations issued).

        Able/Avail        Income    Suit.Work         Jobs          Referal     Other
         Eli   Den        Eli   Den     Eli Den     Eli        Den     Eli Den   Eli  Den
2020 133   9,195     0  5,095     169  59   112      33,623   0   0     282    8,798
2022 2,809 10,339  0    581      119  91   15,129 21,586   0   0     4,777 4,133

Thousands of claims were denied at the start of the pandemic because claimants failed to register themselves at the jobcenter website. See “Missed job center registration” at Unemployment delays, part 2. While Wisconsin waived actual job searches, the state did not waive this registration requirement, and so far too many people had their claims denied for this reason. With this data, we now have a number for those denied for failing to register: more than 33,000. Only at the end of 2020 did the Department realize this job registration snafu was its own fault and stopped processing denials for this reason for a short time (until job searches were re-instated). What happened in mid-2020 was an tidal wave of determinations on this one issue of failed job registration.

By the second quarter of 2022, job search requirements and RESEA training were back in place, so job registration is again just one of many ways a claimant can be disqualified. When they complete these requirements, an initial determination finding them eligible as of the date the requirement is completed is issued. Hence, there are thousands of initial determinations now finding claimants eligible after they are originally denied eligibility for a few weeks.

As obvious in this data, a great deal of work and effort by both the Department and claimants is being spent on these requirements because claimants do not understand what is required of them in the first place.

And, as for the able and available disqualifications, in these situations the Department is simply ignoring its own law and applying a disqualification as it understands it — a claimant must be able to work 32 or more hours in a week in order to qualify for unemployment benefits — rather than what the actual requirements pursuant to unemployment law are — a claimant must be able to work as many hours in a week as physically or mentally capable of working, and will be able and available for work even if that number is less than 32 hours in a week. Most claimants in Wisconsin with a disability are being denied eligibility for no legal reason.

Overall, what this data shows is that the vast majority of people in Wisconsin filing unemployment claims today are being denied eligibility, and these denials almost always are based on claimants failing to satisfy Department claim-filing requirements. That is the story of unemployment in Wisconsin.

SSDI recipients should now apply for regular unemployment benefits

A class action challenging the SSDI eligibility ban in Wisconsin that prevents disabled workers from receiving regular unemployment benefits has been filed. Note: A history of the SSDI eligibility ban in Wisconsin is available here.

With the end of PUA benefits after the week ending 4 September 2021, regular unemployment benefits are again the only option available to disabled workers in Wisconsin. The Department had previously concluded that PUA benefits were available to SSDI recipients because of the SSDI eligibility ban for regular unemployment benefits.

SSDI recipients interested in the class action and eventually receiving regular unemployment benefits for job losses that are not their fault need to do two things.

1. File an initial claim and then weekly certifications for regular unemployment benefits. Do not let Department staffers talk you out of filing these initial claims and weekly certifications. You will be denied, and you should appeal that denial. At your unemployment hearing submit a copy of this brief about why the SSDI eligibility ban discriminates against you because of your disability. Note: Prior to the hearing date, you will need to print and mail in to the hearing office a copy of this brief with your name, hearing number, and social security number on the first page.
2. Do not fall victim to the Department’s mishandling of its own able and available requirements. If asked by a staffer in a phone call or by an administrative law judge during a hearing or on an initial claim or weekly certification about your ability to work more than 32 hours in a week or your availability for more than 32 hours of work in week, answer “yes” to both questions. As currently being asked, these questions CONFLICT with Wisconsin unemployment law and so are invalid questions.

Because of the pandemic, you may lack sufficient earnings during the last year to establish a benefit year. But, you should still file initial claims and weekly certifications. When the SSDI eligibility ban is overturned and you finally can establish a benefit year, you will then be owed unemployment benefits for the weekly certifications now being denied by the Department. So, file away.

No vaccine unemployment bill introduced

A few weeks ago there were media reports about legislators circulating a bill to allow employees who quit or are discharged for refusing a vaccine to qualify for unemployment benefits.

Well, they actually did it. Meet SB 547. The bill creates a host of exemptions for those workers who refuse vaccines and lose their jobs as a result to qualify for unemployment benefits. The legislators even included a provision automatically to waive charges to employer accounts for unemployment benefits paid out to those refusing a vaccine, something the legislators failed to do in 2020 for pandemic-related job losses.

Think of all the other issues that have been ignored by the state legislature during the past year and half that have made unemployment more difficult for Wisconsin workers.

• access to regular unemployment benefits for disabled workers,
• having to quit a job for lack of childcare, like when schools close (instead, workers who lose jobs because of childcare need to argue they quit for good cause because of the illegal actions of the employer, that the employer has violated a basic term and condition of employment established for the job, or give up on claiming regular unemployment benefits and shift to PUA benefits, which end this week),
• having to quit a job because the employer is ignoring public health orders (only available to PUA claimants),
• waiving requirements that employees who are quarantined or sick with Covid-19 symptoms must still be able and available for work and must still search for jobs (these requirements were part of the job search waiver emergency rule that the legislature went out of its way to nix),
• granting an automatic experience rating waiver for all job losses during the pandemic (as happened in nearly all other states) and which has been so messed up in Wisconsin that few employers even know about it, and
• forcing the state unemployment agency to adopt one of the quarterly benefit waiver provisions to ease the quarterly benefit year eligibility re-calculation problem that puts a halt to benefit payments each quarter

There are so many, many issues that could and need to be addressed. Unemployment benefits for those refusing a vaccine is NOT one of them.

Finally, there is a claim-filing snafu on the portal today. Claimants are being told that they have already filed their weekly certification for PUA benefits for the week ending 9/4/2021 on Sept. 3rd.

Normally, the laws of time are that future events need to occur in the future, not in the past. But, for some unknown reason, the claim portal is telling PUA claimants that they have already filed their weekly certification for a week not yet over — the last week PUA benefits are available.

Sigh.

The PUA phone support line is 608-318-7100.

In any case, if you have not done so already, make sure to read the post about filing a back-up PUA initial claim (not the same as a weekly certification).

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.

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.

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?

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:

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

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:

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.