Implementation dates for CARES Act unemployment provisions

All states have reportedly signed agreements with the Department of Labor to implement the CARES Act unemployment provisions.

Here is when you can expect to start receiving these benefits, if eligible, for Wisconsin and a few other states and territories.

PEUC benefits

These Pandemic Emergency Unemployment Compensation benefits are available to anyone who is no longer eligible for other kinds of unemployment benefits from the date the state signed its agreement with the Department of Labor.

If a person exhausts PEUC benefits, they should be eligible for PUA benefits according to Labor Department guidance. See UIPL 16-20, § 4.a., last par. on p.4.

PUC payments

These $600 payments have started in some states. Anyone who receives any other kind of unemployment benefit — regular, EB, PUA, or PEUC — will also receive an additional $600 PUC payment through July 31st.

These payments, when they start, will be dated to the first week of the claim (minus any waiting week).

PUA

These benefits are for those who do NOT qualify for regular unemployment benefits (either because they lack sufficient earnings to qualify or have lost gig work/self-employment because of the pandemic.

Note: More on PUA eligibility in another post later this week.

As noted in the NY Times, there may be additional hurdles for these workers to satisfy before they are declared eligible by the states taking these applications.

These delays, in part, are occurring because of neglect and reliance on out-dated technology in managing state’s unemployment systems. For instance, Wisconsin is one of numerous states that still uses a mainframe computer application built on COBOL to process unemployment claims.

California Governor Newsom’s April 15th press conference revealed several important initiatives relating to both unemployment benefits and undocumented workers. First, an Executive Order issued this same day included:

  • helpful language about mis-classification of independent contractors who should be receiving UI in California under AB5;
  • a requirement that the state unemployment agency expand phone service to seven days a week, from 8am to 8pm;
  • new authority for the unemployment agency to streamline and automate the state’s work sharing program; and
  • an official announcement that the PUA program will start taking claims on April 28th (yesterday, CA announced that it will pay all PUA claimants the minimum PUA of $168 a week, plus $600 within 24-48 hours of when the individual files for benefits).

Second, the Governor announced a new $125 million Disaster Relief Fund for undocumented workers and families (which includes a contribution of $50 million from the philanthropic community) helping 150,000 undocumented Californians with grants to be disturbed by community-based organizations.

Other issues: reform, safety and health, and consumer protections

Michele Evermore of NELP advises that states can take several steps to make the unemployment claims simpler and more efficient.

  • using WARN Act layoff provisions to coordinate with unemployment (something Wisconsin already does to a limited extent)
  • making sure unemployment departments have access to claimants’ and employers’ tax filings for their employees (something I have recommended for years but which the Department has resisted).

And, to determine how unemployment interacts with the sick leave provisions, carefully review this complicated but still very useful flow-chart.

If you need guidance on worker safety and health issues connected to COVID-19, see this review of resources courtesy of NELP.

Help with consumer law issues arising from this the pandemic is available from the National Consumer Law Center.

Update (15 April 2020): Added info about California’s efforts to provide PUA and PUC benefits.

Filing problems in Wisconsin are not new

Reports emerged last week about how efforts in Florida to make claim-filing more difficult are now knee-capping unemployment eligibility during this pandemic.

Privately, Republicans admit that the $77.9 million system that is now failing Florida workers is doing exactly what Scott designed it to do — lower the state’s reported number of jobless claims after the great recession.

“It’s a sh– sandwich, and it was designed that way by Scott,” said one DeSantis advisor. “It wasn’t about saving money. It was about making it harder for people to get benefits or keep benefits so that the unemployment numbers were low to give the governor something to brag about.”

Republican Party of Florida chairman Joe Gruters was more succinct: “$77 million? Someone should go to jail over that.”

With hundreds of thousands of Floridians out of work, the state’s overwhelmed system is making it nearly impossible for many people to even get in line for benefits.

Those in Wisconsin now having great difficulty filing unemployment claims will recognize these same problems: language barriers, mandates for on-line only claiming procedures, difficult to non-existent ways to correct or add claim information that do not fit complex Department-sanctioned processes, legalistic explanations of requirements that have become more complex rather than simplified and clarified, and a near complete absence on social media of explanations concerning unemployment eligibility, processes, and requirements.

And, these problems continue during this pandemic. The Department has only now on the morning of April 6th released versions of its pandemic FAQ in Spanish and Hmong.

But, actual on-line claim-filing, completing job registration requirements at the job center website, and satisfying on-line workshop requirements at the job center website remain English-only.

Note: The Department’s “solution” for these language barriers is to allow a claimant to call for assistance from an interpreter. This assistance, however, depends on the claimant reading the English-language requirements on the website to the interpreter over the phone if the interpreter is outside of the Department (i.e., not a Department employee).

And, the CARES Act FAQ created by the Department is English-only for now. And, to see what the Department is advising about the PUA benefits available under the CARES Act, you need to click here in order to then click on this PDF chart.

All of this clicking and advice to keep re-visiting these website for updated information forces everyone in Wisconsin to keep searching and exploring for answers to simple and vital questions that to them concern how will they pay for groceries and rent next week. The Department should be doing better.

In other words, even if a claim is filed, these on-line requirements to create a resume (not just upload) and to complete required on-line surveys remain in place for receipt of unemployment benefits. The access problems created by these requirements are well-documented and long-standing.

In contrast to Wisconsin, New York has created an excellent flow chart for how all of the various pandemic-related federal benefits will operate in conjunction with regular unemployment benefits.

New York CARES Act flow chart

This chart is front and center in New York state’s explanation of CARES Act benefits and was available in Spanish from the start. Indeed, New York will start paying out PUC benefits this week to its claimants and is now accepting applications by self-employed individuals for PUA benefits.

Until there are changes in Wisconsin, these filing tips and this FAQ should be essential reading for everyone filing unemployment claims in Wisconsin.

Implementing CARES act unemployment provisions

Wisconsin’s Department of Workforce Development is reporting on its FAQ that is will take several weeks to receive guidance about the unemployment provisions in the CARES act and then probably another several weeks before those provisions can be implemented.

Note: The Legislative Fiscal Bureau has already released its analysis of the CARES act as well as the earlier Families First act. This analysis notes some key provisions of these laws that DWD has yet to address, notably employer experience rating for pandemic-related layoffs.

Wisconsin may not have the time to wait. The Economic Policy Institute reports that nearly 20 million are expected to be out of work soon. Current — and shocking — national unemployment figures released today support this prediction. Indeed, after two weeks we are already nearly a third of the way there to 20 million. NELP reports:

This week’s unemployment claims report, which reflects last week’s claims, is up to 6.648 million, up 3.341 million from last week’s historic—and shocking—initial claims report. This is again a truly unprecedented number. Unfortunately, far too many eligible workers who are trying to file for unemployment are still encountering long waits or can’t connect at all with the state unemployment agency websites. NELP urges states to ramp up their claims-processing capacity as quickly as possible.

The Dep’t of Labor data for Wisconsin is just as shocking:

Wisconsin DOL weekly claims

Note: Thanks to Colin Gordon of the Iowa Policy Project for this data and charts.

So, Wisconsin should expect that phone lines and on-line claims systems will continue to be crushed.

Other states are attempting to respond to this onslaught of claims in creative ways, ways that Wisconsin should give serious consideration to adopting:

  • Massachusetts has been holding virtual town halls daily, and once or twice a week in Spanish for those applying for unemployment. Nearly 70,000 have taken part in this option over the past week. Thousands can be on the phone or online at once and staffers take live questions.
  • Massachusetts has also already signed an agreement with the Dep’t of Labor for implementing the CARES act unemployment provisions.
  • New Hampshire has signed its agreement as well. This agreement will, according to the governor, allow New Hampshire to shift regular unemployment claims arising from the pandemic to the federally-funded PUA benefits, increasing the benefits for many as a result of the higher minimum for PUA benefits.
  • Washington state’s FAQ already has information about the federal benefits in the CARES act as well as how other federal benefits (such as tax relief payments) will interact with unemployment benefits.

Note: for a full run-down of what is happening in the state’s in regards to unemployment, see Unemployment Insurance Protections in Response to COVID-19: State Developments.

Finally, employees should be on the lookout for employers attempting to siphon away some of the benefits headed to claimants. Ohio is reporting numerous instances of employers not paying last paychecks and employers trying to avoid unemployment by reducing/zeroing out hours. Wisconsin law requires last paychecks to be paid to employees, and any loss of work because of a lack of work — whether the loss is partial or full and regardless of how the lack of work is labeled — entitles a person to unemployment benefits.

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.