SOME in the Department now think the disabled SHOULD receive PUA benefits

Recall that Wisconsin denies unemployment benefits to SSDI recipients. But, with the pandemic and the economic stimulus created in the CARES Act, it seemed that the disabled in Wisconsin should be eligible for federally-funded PUA benefits based on the statutory provisions in that act.

For some reason, Wisconsin DWD decided the prohibition on eligibility in state law would govern this federal law. By mid-May, legislators were getting dozens to hundreds of inquiries regarding PUA-eligibility for the disabled.

At this time, DWD-UI had received a generic “conclusion” from the US Dep’t of Labor that the SSDI-recipients were NOT eligible for PUA benefits (no actual reasoning is available; see this April 2020 e-mail chain and this other April 2020 e-mail chain — a client of mine just received these from his own open records request).

At this time, I began working with numerous legislative offices at the state and federal level by explaining to them how the proffered rationales for denying PUA benefits to the disabled made no sense in light of current law or the CARES Act. Despite my efforts at being rational and following the actual text of the statutes and regulations in question, my efforts were not having much success.

I feared that reliance on the legal process to correct the Department’s misinterpretation of the law would mean a practical denial of PUA benefits to the disabled. After all, who could wait six to ten months for the legal process to work its way through without any income whatsoever. As is obvious to everyone (except maybe the Department), people literally are going hungry and are getting more desperate by the hour.

A change in policy by the Department is needed now, not next week or next month.

Then, two reporters picked up on this story and did some amazing pieces about the scope of this denial and and its irrational nature.

That media coverage led DWD to produce this e-mail chain dated May 29th with a proffered guidance from the US Dep’t of Labor.

According to this “guidance,” the denial of eligibility for regular unemployment determines eligibility for PUA benefits. As several legislative aides and others know, I did not think this “guidance” was all that convincing. It misconstrued relevant statutes and regulations and avoided applying the basic text of the CARES Act itself for determining eligibility for PUA benefits in the first place.

I continued to work with legislators and advocacy groups on this issue. I also went from 1-2 calls a day to 5-10 calls a day from folks seeking legal help with their unemployment issues. I am now working with around 50 disabled people directly in regards to their eligibility for unemployment benefits and am probably at my limit of how many I can represent.

In the meantime, one of these new clients informed me of a hearing set for June 10th. My June 4th appearance notice in that case probably has still not been processed as of today, but I managed to finally get through to the hearing office about my participation with a phone call on June 9th (my successful strategy? Call every hour starting at 8:30am. I got through at 10:30am after a 35 minutes wait).

That same day, I then got calls from the senior ALJ from the Milwaukee hearing office about procedural matters and even a personal e-mail message from a DWD attorney urging me to drop my “meritless” appeal.

The hearing on June 10th went forward, and the next day I submitted a letter-brief on the issues of how the ban on regular unemployment is discriminatory, how SSDI-recipients are eligible for PUA benefits under the statutory text of the CARES Act if the discriminatory ban remains, and why the ALJ should rule on these issues. If you want to understand the legal issues at stake, read this letter-brief.

Then, last Saturday a source revealed to me a June 9th letter from Sec. Frostman to Sec. Scalia at the US Dep’t of Labor indicating that it is now DWD’s position that SSDI-recipients ARE eligible for PUA benefits because the prior advice had misstated the relevant law.

So, the Department now agrees with me. Let that sink in for a moment.

Without the media coverage on this issue, there would not be a change right now. So, my public thanks to the reporters for their coverage on this issue.

As a result, DWD leadership has stepped up and made a needed policy change. For that, DWD leadership is to be commended and thanked. Still, much work remains, and no one should expect that DWD as a whole has suddenly changed its stripes.

The Department staffers responsible for this discrimination against the disabled are pushing back against this change. Rather than just implementing it, they have warned of dire consequences should the Department get this issue wrong, like the disabled being required to repay the PUA benefits they received or even the Department being sued by the US Dep’t of Labor.

So, the Department claims it now needs permission from Sec. Scalia to find the disabled eligible for PUA benefits. This claim is being made despite the lack of any formal or correct guidance originally denying PUA eligibility to the disabled in the first place.

So, hogwash. As noted in my letter-brief, North Carolina has a similar ban for the disabled receiving state unemployment benefits. In that state, the ineligibility of SSDI recipients is based on their allegedly NOT being able and available for work. North Carolina waived that requirement away by executive order.

Wisconsin claims it cannot waive any able and available requirements, even ones created by state law, such as the requirement to register with the job center of Wisconsin website. In other words, North Carolina is doing something Wisconsin considers impossible. And, yet, somehow North Carolina is doing fine, or at least better than Wisconsin in processing its own unemployment claims and there is no ensuing legal cataclysm.

Wisconsin, in its own ban against the disabled, simply declares them ineligibility regardless of their ability to work. So, the “ineligibility” in Wisconsin falls squarely in the category of making them “eligible” for PUA benefits. As noted in my letter-brief and by Sec. Frostman in his letter, anyone ineligible for regular state unemployment benefits is, by the statutory text of the CARES Act, eligible for PUA benefits.

But (with legal matters, there always seems to be a but), no one should underestimate the hostility of staffers at the Department to awarding PUA benefits to the disabled. The June 9th personal e-mail message to me provides ample evidence of that hostility.

And, I suspect that the Department will slow walk eligibility and examine every facet of a claim for possible denial or fraud charges. And, all of the folks who never applied in the first place or were told not to apply may not be allowed by the Department to file their claims now after this change in policy.

Finally, let’s acknowledge the consequences of this policy change. In 2018, there were around 186,423 SSDI recipients in Wisconsin. Of these, 158,502 worked as well. See Table 9 of this 2018 report.

Around 3 million folks in Wisconsin are in the labor force now. So, 5% of the labor force consists of disabled workers receiving SSDI benefits. FIVE PERCENT.

Note: This number of 158,502 disabled workers is more than all construction workers in the state (127,500 is the April revised figure for construction workers in Wisconsin for March 2020).

Under the state’s eligibility ban, employers still pay unemployment taxes on the wages paid their disabled employees. And, the unemployment trust fund accrues additional monies because these disabled employees are ineligible for the unemployment benefits due them for their work. As such, the trust fund has been rebuilt off of the labor of the disabled. Really.

If this change in policy actually does happen, there are literally tens of thousands of people who will be helped out by my pro bono efforts, these media reports, and the efforts of my clients.

Update (18 June 2020): Fox6 has a follow-up piece on the Department’s shift in position as well.

Policy choices with unemployment

Right now, there are many, many unemployment claims being filed in Wisconsin. But, the problems folks in Wisconsin are having with their claims arise to a great degree from policy choices being made about how those claims should be processed and how the Department decides to enforce federal and state legal requirements.

Last week, the NY Times Upshot examined claims data for all 5o states and concluded that, in general, states have made it harder to get jobless benefits.

The story included three charts indicating in various ways how unemployment eligibility and payments have changed for each state. Here are those charts with Wisconsin marked by a green dot. As evident in these charts, Wisconsin has made it much harder to get unemployment benefits.

Percentage of unemployed who receive unemployment benefits

Here, we see that in 2007 roughly 50% of Wisconsin’s unemployed received benefits in 2007. Now, in 2019, that percentage has dropped to around 30%. This drop is actually greater than the drop in Florida noted in the article. Indeed, it seems that only North Carolina, the other state noted in the article, had a greater drop.

making a claim versus receiving benefits

Here, we see that in the weeks from mid-March to mid-April 2020 in Wisconsin around 13% of the employees have applied for unemployment benefits. But, less than 10% of those applicants ended up receiving unemployment benefits. The change here is not that stark. But, Wisconsin does not fare all that well on this issue when compared to its neighbors Michigan and Minnesota.

Denial rates for failing to meet continuing eligibility requirements

Here, we see where Wisconsin has instituted another dramatic change. In 2007, less than 2% of weekly claims were being denied for failing to meet continuing eligibility requirements. In 2018, however, the percentage of claims being denied for this reason was nearly 8%, a four-fold increase.

Indeed, Wisconsin’s efforts on this front exceed that of Florida, a state notorious for creating these obstacles. And, while other states like Mississippi, South Carolina, and others were even more effective than Wisconsin in getting claims denied for these reasons, the shift in Wisconsin is even more extreme when considered in light of Wisconsin’s role in creating the unemployment in the first place.

Note: see this post for how states have used these obstacles to unemployment benefits to suppress growth in wages.

Essentially, Wisconsin and other states have completely turned away from the goal of providing economic security for the unemployed. It does not need to be this way. As evident in these charts, not all states are like Wisconsin, Mississippi, or Florida.

In 2007, unemployment in Wisconsin was once quite similar to Massachusetts. Today, the weekly benefit rate in Massachusetts is around $600 a week, and more than 50% of the unemployed still receive unemployment benefits in that state. Wisconsin took a much different path. The question is what path Wisconsin will take next.

Will Wisconsin continue to be like Mississippi and Florida and North Carolina? Or, will Wisconsin return to the kind of unemployment system the state originally created.

Good Cop or Bad Cop

Why there is an administrative crisis with unemployment benefits

Unemployment benefits are specifically geared to provide benefits when there is a sudden loss of work, including catastrophic and widespread job loss. Indeed, the story of how unemployment was started in Wisconsin bears this point out in detail. It is no accident that unemployment started in the Great Depression.

So, the meltdown in unemployment systems in which phone systems and on-line systems are crashing and breaking is particularly noteworthy. Unemployment is supposed to be as simple and as easy to manage as possible. That simplicity is one of the reasons unemployment was considered to be one of the central mechanisms for financial relief during this pandemic.

NELP reports how numerous states have failed to meet these basic and essential requirements for effective unemployment administration.

States Choosing to Reduce Access and Cut Benefits Led to Current Dysfunction

Washington, DC — As millions of unemployed workers across the country struggle to access the unemployment benefits they desperately need, a new report from the National Employment Law Project examines the poorest-performing states and their policy choices following the Great Recession that led to the current crisis. By cutting the number of weeks of benefits, slashing benefit amounts, or imposing barriers to obtaining and keeping UI benefits, states such as Florida, North Carolina, and others have badly eroded one of the most important tools for countering recessions. Jobless workers are now bearing the brunt of those poor policy decisions.

“This perfect storm of unemployment benefit cuts and access restrictions so destabilized the foundation of the unemployment insurance program that we are now witnessing its dysfunction in real time,” said Michele Evermore, a senior policy analyst and researcher with NELP, and author of the report.

Broken unemployment insurance infrastructures — particularly in states like Florida, which created an application process designed to discourage workers from accessing their earned benefits — are now wreaking havoc for jobless workers who need those benefits but are unable to access them. As of April 18, the state had only processed 5 percent of the claims submitted since the beginning of the pandemic, with no count of how many workers were unable to file at all.

“Policymakers must learn the lessons from past and present mistakes and ensure that state governments can provide unemployment insurance that meets the needs of all workers — both in terms of delivering adequate emergency support and by making sure that all workers have access,” said Evermore. “We know that benefit duration cuts have a disparate impact on communities of color, as Black and Latinx workers face unemployment rates at unwaveringly higher levels.”

NELP analyzed the value of states’ weekly benefits versus the average weekly benefit nationally (not taking into account workers who are unable to access benefits) and found the following:

  • In Florida, the average weekly benefit of $252.87 replaces only 38 percent of pre-unemployment average wages. If the state’s 339,150 insured unemployed workers had been paid just the national average benefit of $370.82, that would have meant $40,002,742 in additional benefits paid to claimants in Florida just for the week ending April 4, 2020.
  • In North Carolina, the average weekly benefit was $264.70 in the third quarter of 2019. If the 359,151 insured unemployed workers in the state for the week ending April 4 were paid the national average of $370.82, then $38,113,104 more in benefits would have been paid to workers in the state.
  • If Indiana paid the national average in weekly benefits, the 152,609 insured unemployed workers for the week ending April 4 would have been paid $10,807,769 more in benefits in that week alone.
  • In Arizona, if the 116,782 insured unemployed workers in the state in the week ending April 4 had received just the national average benefit, that would have put an additional $16,003,805 in the pockets of Arizonans that week alone.
  • In South Carolina, if the $273.74 weekly benefit were just raised to the national average weekly benefit, the 125,376 insured unemployed workers in the state in the week ending April 4 would have received an additional $12,171,502 in benefits that week alone.
  • In Louisiana, if the 213,338 insured unemployed workers in Louisiana in the week ending March 28 had been paid the national average benefit, they collectively would have received an additional $33,031,122 in benefits that week alone.
  • If Tennessee’s 206,622 insured unemployed workers had received the national average benefit in the week ending April 4, workers in Tennessee would have received an additional $27,003,429 in benefits that week alone.

“We’ve reached the point where it’s too late to prepare states in advance for the massive tsunami of unemployment that is rocking the economy and state unemployment systems,” said Evermore. “But we’re encouraged to see that some states that had previously implemented harmful cuts and restrictions are now, at least temporarily, restoring benefit durations and are working diligently to get payments to unemployed workers.”

As the report highlights, now is the time for states to strengthen their UI programs and ensure that workers can access meaningful benefits.

While not mentioned in the press release quoted above, Wisconsin figures prominently in the actual report:

Wisconsin is another state in which lawmakers chose to erect barriers to UI benefits. The state increased work search requirements from two per week to four per week, and five for workers who are unemployed for seven weeks or more (if the agency makes a determination that the claimant “is placing unreasonable limitations as to salary, hours, or conditions of work in accepting new work or is not engaging in work search efforts as would a prudent person who is out of work and seeking work”). It also established a voluntary system for employers to report failed drug tests to the state agency in order to more easily disqualify workers. It reduced wage levels that qualify as suitable work, increased penalties for fraud determinations, and eliminated good cause for failure to appear weekly to report information about benefits and recipients’ demographic characteristics.

While then-Governor Scott Walker touted these reforms and the effect they had on UI trust fund solvency, Black workers were criminalized by the system while the state’s Black/white unemployment gap is among the worst in the nation. While 29 percent of unemployed workers receive benefits — a little above average — it marks a steep decline from the 50 percent recipiency rate in 2007. The average weekly benefit of $323.90 replaces 43 percent of previous income.

As already noted here, the numerous filing requirements Wisconsin has instituted remain in place during this pandemic even though the point of these requirements — four job searches a week — is currently waived.

So, Wisconsin, which created unemployment during the Great Depression, now finds itself in the ranks of Florida and other states that have made the claim-filing process increasingly harder and more complicated in complete disregard of the whole point of unemployment benefits: to provide needed income when work is not available.

Sad porg

Coronavirus Aid, Relief, and Economic Security Act, aka the CARES act

Update-1 (26 Mar. 2020): the Ways and Means committee just released a FAQ on this bill.

Update-2 (26 Mar. 2020): a comparison of current pandemic relief measures from the Center for Economic and Policy Research and a press release from NELP on the new bill.

Update-3 (26 Mar. 2020): NELP’s description of the bill is now available.

Legislative leaders agreed on a bill, then there were some additional negotiations, and the senate has now passed an 880 page bill. Here is a summary of the unemployment provisions.

New kinds of unemployment assistance

The Act creates a Pandemic Unemployment Assistance (PUA) program which will be available for a large swath of workers who are not otherwise eligible for state unemployment insurance (UI). Eligibility for the program runs from 27 January 2020 through 31 December 2020, so eligibility is retroactive. The total duration of this benefit is 39 weeks.

The Act also creates a Pandemic Unemployment Compensation (PUC) benefit of an additional $600 per week for anyone receiving regular state UI or PUA. PUC will last through 31 July 2020 and will NOT be paid retroactively.

Finally, the Act creates 13 weeks of Pandemic Emergency Unemployment Compensation (PEUC) for those who were classified as employees who have exhausted or will exhaust state UI benefits without finding a new job.

Pandemic Unemployment Assistance (PUA)

Covered individuals here include people who are NOT eligible for regular state UI, including individuals who have exhausted their state UI benefits, including Extended Benefits.

Applicants will need to provide self-certification that they are:

(1) partially or fully unemployed, OR

(2) unable and unavailable to work because of one of the following circumstances:

  • They have been diagnosed with COVID-19 or have symptoms of it and are seeking diagnosis;
  • A member of their household has been diagnosed with COVID-19;
  • They are providing care for someone diagnosed with COVID-19;
  • They are providing care for a child or other household member who can’t attend school or work because it is closed due to COVID-19;
  • They are quarantined or have been advised by a health care provider to self-quarantine
  • They were scheduled to start employment and do not have a job or cannot reach their place of employment as a result of a COVID-19 outbreak;
  • They have become the breadwinner for a household because the head of the household has died as a direct result of COVID-19;
  • They had to quit their job as a direct result of COVID-19;
  • Their place of employment is closed as a direct result of COVID-19; or
  • They meet other criteria established by the Secretary of Labor.

OR are (3) self-employed (and have lost work), OR

(4) seeking part-time employment (if state law allows for benefits for PT workers) [Wisconsin’s benefit formula encourages part-time work when receiving unemployment benefits, but requires claimants to be looking for full-time work or as much work as possible for that individual given that individual’s physical limitations], OR

(5) do not have sufficient work history to qualify for UI, or otherwise do not qualify for state UI.

People who can telework with pay, and anyone receiving paid sick or paid leave benefits cannot receive PUA.

People eligible for PUA can receive up to 39 weeks of benefits, through 31 December 2020. There is no waiting week for the benefits. The benefits that are paid out as well as expenses for administering this program are covered 100% by federal monies.

PUA benefits are calculated the same way as they are for the federal Disaster Unemployment Assistance program under the Stafford Act (the model for the PUA program). So, there is a minimum benefit amount that is equal to one-half the state’s average weekly UI benefit (about $190 per week on average for all states). Wisconsin’s minimum DUA is $163. The maximum benefit will be $370, Wisconsin’s maximum weekly benefit rate.

Pandemic Unemployment Compensation (PUC)

Through 31 July 2020, all UI and PUA claimants will receive their usual calculated benefits plus an additional $600 per week in compensation. The $600 in extra compensation is NOT retroactive.

The additional $600 per week may be paid either with the regular UI payment or at a separate time at the discretion of the state. But, this benefit must be paid weekly.

The PUC benefits that are paid out as well as administrative expenses are covered 100% by federal monies.

PUC payments are NOT income for purposes of eligibility for Medicaid and CHIP.

Pandemic Emergency Unemployment Compensation (PEUC)

An additional 13 weeks of state UI benefits, tacked onto whatever the state currently offers (all but 8 states offer 26 weeks of UI). Wisconsin currently provides for 26 weeks of benefits, so now 39 weeks of benefits will be available here.

For those who might be eligible for regular benefits in other states, they must first apply for benefits in those other states before receiving PEUC benefits.

Note: This eligibility in other states was a major problem during the last recession and the EUC benefits made available then. Many claimants received EUC benefits only to find six months to a year later that they had to repay those EUC beenfits because they were eligible for regular UI benefits in other state if they had thought to apply for those benefits.

The PEUC benefits that are paid out as well as administrative expenses connected to PEUC are covered 100% by federal monies.

Job search and registration requirements each state has for regular UI benefits remain in place for PEUC benefits. But, “a State shall provide flexibility in meeting such requirements in case of individuals unable to search for work because of COVID-19, including because of illness, quarantine, or movement restriction.”

Claim-filing mistakes, penalties, and repayment

There are fraud penalties for anyone who makes “a false statement or representation of a material fact, or knowingly has failed, or caused another to fail, to disclose a material fact, and as a result of such false statement or representation or of such nondisclosure such individual has received” these new federal benefits. As DWD alleges fraud when making unintentional claim-filing mistakes and DWD will be administering these federal benefit programs in Wisconsin, folks should exercise extreme caution on this front.

The numerous warnings that begin every Wisconsin claim are there to indicate how aggressive the Department is on this issue. The Department does NOT consider failing to know something or mis-understanding an issue to be an adequate excuse for a claim-filing mistake. In other words, the Department presumes all mistakes are intentional fraud; any admission of a mistake, for the Department, constitutes an admission of guilt.

Note: The penalties for unemployment fraud are sizable. As of January 2020, the program integrity fund in which only a small portion of these penalties are deposited, amounted to $11,726,000 (see line 228). The Department is free to spend these funds as it sees fit.

Repayments that are needed when there are filing mistakes for non-fraudulent reasons can be waived when the over-payment of benefits was without fault of the claimant and repayment would be contrary to equity and good conscience (i.e., an economic hardship on the claimant).

Finally, payment of benefits under these programs can NOT be stopped until “until a determination has been made, notice thereof and an opportunity for a fair hearing has been given to the individual, and the determination has become final.”

Short-Time Compensation (aka work-sharing) (STC)

Federal government will fully reimburse states for all STC programs as defined in Section 3306(v) of the Internal Revenue Code.

Grants will be available to states that already have STC programs to help improve and promote them. Wisconsin already has a work-share program.

Note: What is work-share you ask? In return for maintaining benefits for employees, an employer can keep workers employed at reduced hours. The reduced pay is subsidized with unemployment benefits covering the lost hours of work. The application form spells out the requirements for this program on the third page. For more information or to apply, call the employer contact number at the Department: 608-261-6700.

States that enact conforming STC programs after the date of enactment will also be eligible for funding and implementation/promotion grants.

STC plans entered into by employers must provide that the employer will pay to the State 1/2 of the amount of STC paid under the plan. This money goes into the state UI trust fund. I am unsure of what this provision will mean for Wisconsin employers that adopt a work-share program.

Other provisions

For states that waive their waiting week, all benefits paid for that week as well as administrative expenses will come from federal monies.

There is a “nonreduction rule” — as long as the states are participating in these programs, they may not do anything to decrease the maximum number of weeks of UI or the weekly benefits available under state law as of 1 January 2020.

Reimbursable employers like non-profit and governmental entities will be reimbursed for unemployment benefits paid out to their employees from 13 March 2020 through 31 December 2020. The Dep’t of Labor is supposed to issue guidance that “would provide maximum flexibility to reimbursing employers as it relates to timely payment and assessment of penalties and interest pursuant to such State laws.”

State unemployment agencies have flexibility to hire additional staff through 31 December 2020. They may engage temporary staff, rehire former employees, and retirees, all on a non-competitive basis.

Claims-filing FAQ

Jenn Bizzotto of Wisconsin Judicare has written the following FAQ that offers some excellent advice for those filing unemployment claims during this pandemic. Do not forget to also read through these filing tips.

Unemployment FAQs

Q: Can I apply for unemployment if my work hours were reduced or eliminated due to COVID-19?

A: In general, yes. However, for every week you claim you must still be physically able to work. So, if you are so sick with COVID-19—or any other serious illness—that you physically can’t work, you are not eligible to receive benefits for as long as you’re too sick to work.

Congress is currently debating emergency legislation that would offer paid sick leave. Unfortunately, nothing has been passed so far. In the absence of emergency legislation, employers in the U.S. are not required to provide paid sick leave to their employees.

Q: What if I’m sick but haven’t been tested, or am waiting for test results, for COVID-19?

A: If you have mild symptoms and could otherwise work, but your employer, your doctor, or a government agency has instructed you not to work, then you are still eligible for unemployment.

For example, Tom has a slight fever and a sore throat. He told his employer, a nursing home, that he has those symptoms. His boss told him not to come in, even though with his mild symptoms Tom is technically still capable of performing his job. His boss told him that it’s just too risky for him to do so because he might infect the nursing home residents. Because his employer told him not to come in, Tom is eligible to collect unemployment.

Q: What if my employer still wants me to come in for work but I don’t feel comfortable doing so due to the COVID-19 outbreak?

A: Unless you have a doctor’s note verifying that you have an illness or disability that prevents you from coming to work, you will not be eligible to collect unemployment if you do not continue working where work is available. In other words, you can’t self-quarantine and then collect unemployment; you must have a doctor’s note stating that it is medically necessary for you to miss work.

Q: What if I have an illness or disability that puts me at high risk for COVID-19 and my doctor has ordered me not to work?

A: If your doctor has confirmed in writing that you do have an illness or disability which prevents you from working, you may be eligible to collect unemployment. However, you still need to theoretically be “able” to work at some job, just not your current job.

For example, Juana has a doctor’s note verifying that she is immuno-compromised and that she should therefore be excused from work for the next three weeks. Juana currently works in a crowded factory. So long as she would be able to perform work of some kind—say as a delivery driver where she doesn’t need to work in close contact with others—she is eligible for unemployment.

Q: What if a family member gets sick and I need to care for them, but I can’t due to my current work schedule? If I quit my current job, will I be eligible for unemployment?

A: Maybe. First, you will need a doctor’s note verifying your family member’s illness or disability. Second, that family member must be a member of your immediate family. Third, you must first give your employer the opportunity to accommodate you. Finally, you must remain available to work full-time.

Consider Matt, who works in retail. His mom contracted pneumonia and needs Matt to care for her during the day. The store Matt works at is only open during the day, and his boss tells him they don’t have any evening or night work available for him. Because Matt is available for full-time work during second or third shift, he can quit his first-shift retail job and collect unemployment while he looks for a job with a schedule that allows him to care for his mother during the day.

Q: What if my doctor is too busy and isn’t able to see me or provide a doctor’s note in time for me to file my claim?

A: To be eligible, DWD is mandating that a doctor’s order, an employer, or a government agency specifically direct you by name to not report to work. If you can’t get something in writing, call your doctor’s office, explain the DWD requirement, and ask the doctor or nurse for a phone consultation and verbal order putting you off work until you can be seen.

Q: Am I eligible for unemployment if I quit my job because I no longer have childcare for my young children?

A: Probably not, although we don’t know yet how the DWD will be handling these situations.

Ordinarily, a worker is not eligible for unemployment if he quits his job to care for his minor children. This may be true even now that most schools have closed due to the COVID-19 outbreak, but the DWD hasn’t provided any guidance so we just don’t know for sure. An exception exists for a situation in which the worker is required to change shifts, and that shift change leaves him without childcare.

For example, Amy has a seven-year-old son who is in second grade. Last week, her son’s school closed due to the COVID-19 outbreak. Amy works 9 to 5 as a paralegal. She has no one to care for her son since he’s no longer in school, and quits her job. It’s unclear whether she’ll be eligible to collect unemployment given the current public health emergency. In normal times, she would not be eligible.

Alang works as a day-shift nurse. He has two three-year-olds. His employer, a hospital, required him to change to nights. Alang’s daughters currently go to daycare while he’s at work and daycare would not be available at night. So, rather than change to the night shift, Alang quit his job and plans to apply to other day-shift positions at nearby hospitals. He is eligible for unemployment.

Q: Am I still required to search for work every week? Does that change if I have COVID-19, or if I think I have COVID-19?

A: From March 12, 2020 until Governor Evers declares that the public emergency is over, all claimants are exempt from the work-search requirement. This means you do not need to perform four work search activities each week as you normally would be required to do.

Q: Does the waiting week still apply?

A: Yes. Wisconsin still has a one-week waiting period, so you will have to wait a week after filing your initial claim to begin receiving benefits.

Q: Do I still have to register with the Job Service?

A: Yes. All claimants must register with the Job Service of Wisconsin. This means that you must create and submit a résumé. If you need help creating a résumé, contact the Job Centers of Wisconsin.

Q: Are the Job Centers of Wisconsin still open?

A: Yes. Even during the COVID-19 pandemic, so far the Job Centers of Wisconsin will remain open. Update: as of March 25th, the job centers are closed.

Q: I received a notice from the Department of Workforce Development (DWD) that I am required to attend a Job Re-employment Session (RES). Do I still have to comply, even though the governor has declared a public health emergency due to COVID-19?

A: Yes. You must still comply with the Re-Employment Session requirements. These sessions are now being conducted by phone, so you may not be required to go to the Job Center in person. Read the notice you received carefully, and if you have questions contact the DWD.

Q: Help! I’m really confused with all of these unemployment requirements, or I’ve received an initial determination that has found me ineligible to collect benefits. What should I do?

A: You may be eligible for free legal assistance. Call 211 and tell the operator that you’re looking for assistance with an unemployment claim.

These FAQs are also available as a PDF.

Update (26 March 2020): Added info about job centers being closed.

Filing tips for unemployment benefits redux

As indicated by the Department through its new initial claims data, initial unemployment claims are already up 20x from the number of claims being filed last year.

Week 12 initial claims data

Any one who has not filed an unemployment claim recently should review or gather the following information.

First, a 2018 post has important tips for how to file an unemployment claim. Here is a PDF of that post for easy printing. Do and read everything in this post (outside of job searches — see below).

Second, the job search information in this post is unnecessary at the moment, given the widespread/societal job losses going on at the moment. The sudden halt on entire economic sectors is making job searching utterly futile outside of health care and transportation/shipping. Kudos to state leaders for recognizing that job searching in these times is completely unnecessary.

Third, the Department’s job search training and registration requirements remain solidly in place. And, like the on-line claims process, all of these can ONLY be done on-line and are ONLY in English. If you have limited Internet access, have trouble with technology, or are not the best with navigating an English-only system with specific legal requirements and mandates, make the trip to a DWD job center location near you to get help. Despite the pandemic, these centers are remaining open because of these requirements. Update: as of March 25th, the job centers are closed.

Note: The federal legislation passed this previous week mandates that states have at least two mechanisms for filing unemployment claims to receive the additional funds being made available for unemployment administration and benefits in that legislation. So, at some point, the Department may need to re-activate its phone system for filing unemployment benefits.

Fourth, as noted previously, print your pay stubs NOW. The Department will need to verify your wages with your employer. But, with employers shutting down and having to deal with mass layoffs, many will find it difficult if not impossible to provide all of the information being requested by the Department. And, as the Department has yet to waive or extend any deadlines or response/appeal dates for employers and employees, you may need to provide information about your work history with your employer yourself.

Again, the Department will want specific information about your pay and hours going back a year or more. Given that many employers may not be around in a month, do not think that your wage and hour information will be available from those employers when the Department needs it. Get your wage and hours information now as best you can and get that information going back to the start of 2019 and even into 2018 if you can.

Fifth, those employers who still have some work going on and want to avoid mass layoffs should immediately inquire with the Department about its work-share program. In return for maintaining benefits for employees, an employer can keep workers employed at reduced hours. The reduced pay is subsidized with unemployment benefits covering the lost hours of work. The application form spells out the requirements for this program on the third page. For more information or to apply, call the employer contact number at the Department: 608-261-6700.

Finally, the Unemployment Compensation Appeals Clinic remains open and is working on how to handle a sky-rocketing number of cases. To schedule an appointment, call 211 to connect to the United Way and explain that you are looking for unemployment assistance.

Update (26 March 2020): added information about the job centers closing.

DWD/Evers emergency order issued

Wisconsin released an emergency order late last night. The order does quite a lot.

  1. Availability for work exists even when suspected of being sick or in quarantine.
  2. Suspected of being sick or in quarantine constitutes good cause for missing an eligibility review (a typo in the order mistakenly refers to section 2 when it should state section 1).
  3. Absences from work do not legally exist while a public health emergency is declared if the absences are connected to quarantine.
  4. There are no job search requirements during the public health emergency, retroactive to March 12th (the date a public health emergency was declared).

There is nothing yet about those losing work because they are caring for ill family members or who cannot work because kids are no longer in school or childcare.

Note: There are statutory exceptions already which allow benefits for these circumstances, but the Department has been extremely tough in applying these exceptions. It is important for the Department to indicate it will acknowledge and apply these provisions of unemployment law to allow unemployment benefits in light of what this pandemic is doing and the public health emergency it is creating.

It also appears that there is a loophole in how the Department will be applying this emergency order. The order only mentions those who are suspected of being ill or who are in quarantine for perceived or possible symptoms. If a person is actually ill, it appears that unemployment benefits will be denied because the person is not able to work in light of his or her actual illness. So, do not get sick during this public health emergency if you want to receive unemployment benefits.

In any case, the emergency order is a good start. These changes apply for the duration of the public health emergency.

Note: the waiting week for unemployment benefits remains in place until legislators convene and pass a new law temporarily (or permanently) removing the waiting week. Gov. Evers has requested that the waiting week be temporarily lifted.

As far as the Department’s other eligibility requirements, they all remain in place. The Department’s corona virus FAQ has been updated with additional information, for instance:

All Re-Employment Services sessions scheduled after Friday, March 20, 2020 will be conducted over the phone as “tele-sessions.” What participants should know:

  • After registering on JCW and creating a resume, individuals may be asked to view an online orientation and take an assessment
  • At the end of the assessment, participants will be informed if they must participate in the Re-Employment Services program
  • Participants will asked to sign up for a three-hour window for the “tele-session”
  • The participant will be called at some point during the three-hour window they have selected
  • A presentation will be emailed to the participant prior to the phone call for reference
  • The participant must be available and answer the phone when called by the Re-Employment Services facilitator
  • The facilitator will call twice
  • Failure to answer the phone after the two attempts could result in a loss of UI benefits
  • The incoming call may be from an “unknown” or “blocked” caller

It is up the to the participant to ensure their contact information is correct. Contact information can be reviewed on under “My Account” on the top right of the screen.

As indicated here, creating a resume on remains a requirement. For those in their homes with only a smart phone for Internet access, good luck on creating that resume and meeting these requirements.

Update (20 Mar. 2020): Here is the Department’s initial internal guidance about how to apply the emergency order:

  • Work Search — The work search is satisfied during the COVID-19 emergency beginning last week, the week ending 03/14/2020.
  • Work Registration (done on JCW) — If notified of requirement, claimants must register as required. Unless good cause for failing to register, benefits will be denied.
  • Re-employment Services — If selected, claimants will be scheduled to participate by telephone. Unless good cause for failing to participate is determined, benefits will be denied.
  • Able and Available — Federal requirements require the claimant to be able and available for suitable work. However, if claimant is prevented from returning to work by the employer due to perceived symptoms of COVID-19 or is quarantined AND either of the of the following apply the claimant may be able and available for work:
    • Employer instructs to return and claimant intends to return OR
    • Would be able and available for work with another employer except for those same reasons.

Quarantine must be by a medical professional or Government direction or guidance.

  • Work Available — If the claimant is prevented by the employer from returning to working due to perceived COVID-19 symptoms or quarantined, there is no work actually available.


States’ unemployment responses to the pandemic

Update 2 (17 Mar. 2020): At a video presser this afternoon, Gov. Evers announced that he would be proposing legislation to end the waiting week on unemployment benefits, waiving job search requirements for those quarantined, and making further changes to able and available status. There were no details or a written press release that I can locate. Gov. Evers indicated that the proposals would be released tomorrow, March 18th.

Update 1 (17 Mar. 2020): Slate reports that state unemployment websites and systems are crashing throughout the nation given the unprecedented number of people being laid off from jobs and filing unemployment claims.

As previously noted, Wisconsin’s Department of Workforce Development has offered a misleading, contradictory, and unsympathetic response so far to the pandemic.

Here are a few examples. In the FAQ provided to employees and employers, the following information is offered:

Q: I am required to attend a re-employment services session. I don’t want to go to a public location until the coronavirus has run its course. What will happen if I miss my session?

A: If you fail to attend your mandatory session, you will be denied unemployment benefits unless it is determined you had good cause for missing the session.

DWD could be stating here that being quarantined is good cause. Even better, DWD could say that these requirements are being suspended for all claimants for the time being because of the pandemic and the need to keep large gatherings of people to a minimum. Instead, in this response DWD is not doing anything that makes unemployment benefits actually useful and accessible during this pandemic.

Q: If an employee is in mandatory quarantine because of suspicion of having the coronavirus, will they be eligible for unemployment benefits?

A: They might meet the initial eligibility criteria but not the ongoing federal eligibility criteria, which require them to be able to work, available for work, and actively seeking suitable work.

Able and available — the unemployment issue in play here — is required by federal law in a general sense but is specifically defined and applied under state law. So, California is already allowing benefits under its own definitions and application of what able and available means.

In this FAQ, Wisconsin makes no mention at all of how its cumbersome work search and registration requirements will be massaged in light of a pandemic that is leading businesses across the board to shut down. Why should anyone be required to do four job searches a week, for instance, when work is disappearing faster than a squirrel chased by a cat or dog?

Even more troubling, the one Wisconsin program that directly addresses the economic slow-down created by this pandemic — work-share — was only mentioned in a FAQ for program partners, and that FAQ has since been removed from DWD’s website (a press release is still available).

The Department of Workforce Development has released a statement of scope for an emergency rule to modify DWD 127 — work search requirements and DWD 128 — able and available requirements. The only description of proposed changes in this document is:

The Department of Workforce Development proposes to amend DWD 127 to provide for an additional waiver of the work search requirement for the limited class of claimants who are job attached, otherwise eligible, and who are isolated or quarantined due to COVID-19. This will result in these claimants not being required to search for work during the isolation or quarantine period. The rule will also address work search actions for claimants.

The Department proposes to amend DWD 128 to provide for eligibility provisions related to the availability for work and work available requirements for claimants who are job attached, otherwise eligible, and who are isolated or quarantined due to COVID-19. These changes will provide that such claimants are considered available for work even though they are isolated or quarantined.

So, it is unclear what will happen to the numerous other requirements the Department maintains — like attending a job search seminar or registering on the job center of Wisconsin website — for claimants to be eligible for unemployment benefits.

Other states have been both more decisive and less encumbered in responding to the pandemic. Here is a description of some of those efforts.


The Department of Unemployment Assistance for Massachusetts has already issued policy guidance that declares individuals in quarantine to be able and available for work. A bill has also been introduced to waive the one-week waiting period for the duration of the pandemic. Finally, emergency regulations create a category of “standby status” for claimants that automatically makes them able and available for work, considers “suitable work” to include being in quarantine for numerous reasons, and indicates that the pandemic provides good cause for claimants and employers for missing numerous filing and appeal deadlines.


Unlike in Wisconsin, the FAQ in Ohio provides simple and straightforward answers on eligibility issues. For instance:

Question 3: If an employer lays off employees due to the loss of production caused by the coronavirus, will the employees be eligible for unemployment insurance benefits?

Answer: Yes, if the employees are otherwise eligible. An executive order issued by Governor DeWine expands flexibility for Ohioans to receive unemployment benefits during Ohio’s emergency declaration period.

Question 4: If an employee receives unemployment benefits as a result of a coronavirus-related business shutdown, will the employer’s unemployment taxes increase?

Answer: For contributory employers, charges during Ohio’s emergency declaration period will be mutualized. Reimbursing employers will follow existing charging requirements under Ohio Revised Code Chapter 4141.

Links and phone numbers for filing an unemployment claim are even provided at the bottom of the FAQ. And, an executive order from Ohio’s governor indicates that:

  1. Unemployed workers will include individuals requested by a medical professional, local health authority, or employer to be isolated or quarantined as a consequence of COVID-19 even if not actually diagnosed with COV-19; and
  2. Individuals totally or partially unemployed, or who are participating in the Shared Work Ohio Program will not be required to serve a waiting period before receiving unemployment insurance or SharedWork benefits; and
  3. Any benefit paid on these unemployment claims shall not be charged to the account of the employer who otherwise would have been charged but instead shall be charged to the mutualized account, except reimbursing employers; and
  4. Waiver of work search requirements shall include those individuals requested by a medical professional,local health authority or employer to be isolated or quarantined as a consequence of COVID-19 even if not actually diagnosed with COV-19; and
  5. Penalties for late reporting and payments will be waived for employers affected by COVID-19.


One of the states hit earliest in this pandemic, Washington has already issued emergency rules to expand coverage on a number of fronts. A chart is now available to explain when unemployment benefits can be offered:

Washington-Covid19 and unemployment benefits


Julia Simon-Mishel of Philadelphia Legal Assistance reports:

The PA Department of Labor and Industry has been very receptive to our recommendations and pro-active in addressing the public health crisis.

I have been in constant communication with the Deputy Secretary and the Appeals System Administrator. The Department has:

    • waived the waiting week
    • waived all work search requirements, including:
      • registration with the state job search website
      • weekly job searches
      • RESEA (all classes have been canceled)



Fortunately, our state law allows them to put a waiver in place and there was no hesitation to do that once the Governor declared a state of emergency.

PA UC law already provides coverage for workers who have quit jobs due to unsafe working conditions. There is also coverage for taking care of sick family members.

The Department is also working on language the will broaden who is considered “able and available” for work, as I have been concerned that people sent home for colds, or who have to watch their children because of school closings, would be considered ineligible. They have told us they will be as liberal as possible in granting benefits within the confines of DOL guidance.

At first we were told that all new PA UC Referee hearings will be scheduled as telephone hearings (ours are still typically in person). However, that was recently taken back by the administrator and we were informed they were cancelling hearings. We have launched strong objections to that and are hopefully that will not be the final decision.

One of our biggest concerns is that UC does not have the staffing to handle this crisis, especially if people need to work remotely. Unfortunately, our old mainframe computer system is not the most flexible, but they are working on a tool that would let them access it remotely, as well as setting up staff to field calls remotely. PA is currently in the middle of a benefits modernization project but our new system is not set to go live until October (if that even happens given the crisis). The Department will need to drastically ramp up staffing. The other major concern is that our web application is clunky and not mobile responsive. Workforce centers and libraries are closed, so people do not have access to computers outside their home. If folks cannot get through on the phones to file a claim, they will have no good way of filing. My organization is looking into ways to reallocate resources and pull in pro bono volunteers to help people file claims online during the crisis.

I am hearing non-stop from those working in the gig economy wanting to know if they can get benefits. In PA, that would be an uphill battle that would most likely end up in our state Supreme Court, as no earnings from gig companies are reported as wages. Therefore, unless a worker had enough separate W2 wages to qualify financially, they are shut out of this system. The other problem is people who do qualify from losing a full time W2 job but then start driving for UberEats, Grubhub, etc to help make ends meet. They constantly get disqualified by the lower level decision-makers. Our Department has refused to apply current precedent which holds that when workers engage in gig economy or short term work after losing their normal employment, it should not be disqualifying under PA’s “self-employment” provision (Lowman v. UCBR, 178 A.3d 896 (Pa. Commw. Ct. 2018)). The case is currently up on appeal to the PA SCT, we are waiting for a decision at any moment.

So, numerous states are being creative and acting quickly in light of this pandemic. Wisconsin, the state that invented unemployment insurance, seems to be dragging its feet.

Note: Political party is not indicative of these responses. Both Massachusetts and Ohio have Republican governors. Indeed, Mitt Romney has recently proposed giving $1000 to every US adult.

Corona virus, federal legislation, and Wisconsin plans

Federal legislation

The House has passed a bill that the Senate will take up this week. Andrew Stettner describes what is in the bill and what it hopes to accomplish on making unemployment both easier to use and more amenable to claimants. Stettner also does an excellent job of explaining how and why unemployment benefit programs have gotten drastically harder to apply for and receive (Wisconsin has been a leader on this front).

The House bill also provides paid sick days to millions of employees who currently are not eligible for sick leave and funds paid FMLA benefits for those caring for family members who are ill because of COVID-19.

In addition, OSHA has supplied detailed workplace guidance on COVID-19 issues. All employers and employees should read through this document and other information.

Wisconsin plans

Two state agencies are central to the response to this pandemic. First, the Department of Health Services handles the health care side of the response. DHS updates are available here. Basically, all health-related information the state has about COVID-19 can be found at this website.

Second, the other state agency of concern is the Department of Workforce Development. DWD has issued a reminder about the state’s work-share program. Through the work-share program, an employer can apply for unemployment benefits for its workforce through which a reduced workload can be shared among those employees while avoiding layoffs and still allowing for additional training.

Unfortunately, the application process for work-share benefits is cumbersome. Since the great recession, only a few employers have managed to take advantage of this program.

DWD has also posted FAQs about how to handle the impact of COVID-19 in the workplace. These FAQs indicate that at present there is not much currently available to those who lose work because of the Corona pandemic. For instance, job search requirements and even job center registration and attending job center training remain in place for those who lose work through no fault of their own because of this virus. As a result, unemployment benefits will NOT be available to anyone who is quarantined or ill because of corona virus.

Strangely, DWD is blaming the denial of benefits for these reasons on federal requirements. Yet, many if not all of these requirements are specifically set forth in state law. Federal authorities, moreover, have just released a program letter indicating that unemployment benefits may be allowed if available under state law. So, it does not bode well that DWD is suddenly proclaiming their hands are tied with make-believe knots.

The Unemployment Insurance Advisory Council is scheduled to meet on March 19th at 10am. If DWD will implement changes to make unemployment benefits useful during this pandemic, the council will apparently have to push for these changes at this meeting.

Dane County and Madison

Brenda Konkel of Forward Lookout describes the press release event and order issued Sunday, March 15th. Basically, gatherings of 50 or more individuals are now NOT supposed to happen. An event or gathering now restricted is one:

that brings together or is likely to bring together fifty (50) or more people in a single room or single confined or enclosed space at the same time, such as, by way of example and without limitation, public schools, private schools, charter schools, an auditorium, stadium, arena, conference room, meeting hall, theater, movie theater, exhibition center, museum, taverns, health/fitness and recreational centers, licensed pools, place of worship and religious gathering centers, and any other space where people are present and they are within arm’s length of one another for more than ten (10) minutes.

There are numerous exceptions (so read the order), but the general framework now is that gatherings of large groups of people in close proximity should NOT happen.

Madison schools has located all of their pandemic-related resources to a single website. Madison schools, for instance, has information about how to get free WI-FI access at home, access to available health services, or access to your student’s chromebook.

Bail outs already for Wall Street; Main Street . . . [crickets]

Yesterday, March 12th, the New York Federal Reserve decided to pump $1.5 trillion into short-term markets to keep money flowing to banks and big businesses. A twitter post put this amount into instant perspective:

Student debt: $1.5 trillion

So, we are repeating the story from the last recession: bailouts for Wall Street but hand-wringing and caution about helping out Main Street.

Surprisingly, this cash infusion did little to address these problems and led to an additional sell off. Jake explains:

So the Fed is lending this absurd amount of money because banks and corporations had put on too much debt. Now these companies can’t pay off what they owe with the economy and stock market tanking, and revenues going down the drain. Which puts us right back in 2008, except the job losses will be following the crash instead of leading up to it.

* * *

Why did the DOW fall back and end up at the largest % drop since Black Monday in 1987, and 4th largest ever? Likely because the Fed’s statement gave the same message that its surprise rate cut did last week — telling the public (and especially Wall Streeters), “THIS ECONOMY IS SCREWED MORE THAN YOU KNOW.”

A column in the NYTimes agrees, explaining how much conventional wisdom is now being called into question. One thing not mentioned in this column which should give us all additional caution: corporations and the super-wealthy have been sitting on massive cash reserves over the last decade even as debt for the rest of us has been climbing.

Until we start providing some actual assistance for families and workers on Main Street, this “crisis” will continue.