File a backup PUA initial claim NOW

UPDATE (18 Sept. 2021): Federal guidance, UIPL No. 16-20 Change 6 (3 Sept. 2021) at 11, has been issued which allows claimants to file PUA initial claims until 30 days after the program’s expiration — i.e., 4 October 2021.

This federal guidance also spells out that:

States must notify every individual who had previously filed a PUA claim at any time while the PUA program was in effect and was denied for any week because they were not unemployed, partially unemployed, or unable or unavailable to work for one of the COVID-19 related reasons available at the time. Below are some examples of who is included in this population.

o If the individual selected “none of the above” or skipped selecting a COVID-19 related reason and was denied only for this reason, they are included in this population.

o If a state offered a free-form text box and, upon evaluation against the COVID-19 related reasons available at the time, the state determined that the individual was not unemployed, partially unemployed, or unable or unavailable to work for one of the listed reasons, thus denying them – then the individual is included in this population.

o If an individual was denied for a reason other than failure to self-certify to a COVID-19 related reason(s), they are not included in this population (e.g., if the individual was denied because they were eligible for regular UC instead, they are not included in this population).

UIPL No. 16-20 Change 6 at 5.

PUA claims previously denied. In addition, states MUST re-assess and likely approve PUA claims that were previously denied for reasons now covered.

Processing certifications returned from previously denied PUA weeks. An individual must be found eligible for a previous week if they: (1) were previously denied for a week only because they did not self-certify to one or more of the COVID-19 related reason(s) available at the time; (2) upon receiving notification of the expanded eligibility list of COVID-19 related reasons, self-certified that they were unemployed, partially unemployed, or unable or unavailable to work due to one or more of the COVID-19 related reasons; and (3) meet all other eligibility requirements for the program.

UIPL No. 16-20 Change 6 at 6. This mandate applies to PUA claims denied after an appeal tribunal decision and even a decision by the Labor and Industry Review Commission. Id. at 7.

Back-dating of claims. Good cause for back-dating a PUA initial claim or weekly certification is unnecessary. UIPL No. 16-20 Change 6 at 7.

Back-dating of PUA claims is possible well after October 2021 if possible eligibility for PUA is not established until later. Because of claims-processing delays (far too many Wisconsin claimants are still waiting for weekly certifications dating back to March 2020 to be paid), claimants may not have a definitive answer about their eligibility for regular unemployment benefits until well after October 4th of 2021:

if they: (1) filed a regular UC claim prior to the end of the 30-day required period for accepting new PUA applications after the date of state termination or program expiration (whichever comes first) and (2) are found ineligible for regular UC (or PEUC or EB) after the end of the 30-day required period. However, such an individual must file the PUA claim within 21 days of the determination of ineligibility for regular UC. The state must notify affected individuals of this PUA filing deadline, which may be done as part of the notification that their UC (or PEUC or EB) claim was denied or in a separate notification.

UIPL No. 16-20 Change 6 at II-1 to II-2.

Which state to file a PUA initial claim? Claimants should file their PUA initial claim in the state where they suffered their pandemic-related job loss. UIPL No. 16-20 Change 6 at 8.

PUA documentation requirements. The documentation requirements instituted by the Continued Assistance Act remain in place. But, for claimants filing a second PUA initial claim (for instance, they caught Covid-19 in the summer of 2021 after returning to work earlier in the year), “the state must obtain such documentation substantiating employment or self-employment (or the planned commencement of such) prior to releasing payment on the new claim.” UIPL No. 16-20 Change 6 at 10.

A complete description of all the pandemic-related job loss reasons that qualify for PUA benefits are listed in attachment I to this federal guidance. If you need any assistance or guidance concerning these pandemic job-loss reasons, read this description. The original post follows.

Given the delays in getting cases heard (for the week ending 7/31/2021, 4,732 hearings were scheduled, but the number of hearings still waiting to be scheduled stood at 13,151, up from 12,780 as of 5/1/2021 despite over 4000 hearings be scheduled each week), hundreds if not thousands of claimants will not find out about their eligibility for regular unemployment benefits or their PUA eligibility until well after September 4th, when PUA benefits expire. After that date, filing an initial claim for PUA benefits will likely NOT be possible. So, claimants need to consider filing an initial claim for PUA benefits while they still can.

Note: While the Labor and Industry Review Commission is correcting many of the bad decisions by the Department, the sheer number of bad decisions has led to a crushing caseload at the Commission. Simple errors by appeal tribunals concerning wrong dates or the failure to apply federal guidance, for example, are not being corrected. And so, appeals to the Commission are needed. The result is that an appeal filed today may take a year to be decided by the Commission.

Furthermore, the Department is currently re-investigating all paid claims. Should the Department conclude that you were not eligible for the unemployment benefits paid to you, you will likely face an over-payment of at least $20,000 when all the additional PUC and LWA benefits are added up (and amounts up to $40,000 or more are possible). Without the option of possibly re-qualifying for PUA benefits, those amounts will be owed without any ability to collect under the program specifically designed to help those who do not normally qualify for regular unemployment benefits — PUA benefits.

Wisconsin: where initial claims go to die

Very few initial PUA claims in Wisconsin — just one out of four — have led to the payment of PUA benefits. Here is how Wisconsin compares to its neighbors and other key states in regards to PUA claims and weekly benefits paid.

ST  Ini. Claims  First Paymts   Percent   Weeks Comp.
WI    177,745       43,838       24.66%    1,373,636
IA     98,863       38,926       39.37%    1,089,524
IL    651,856      274,512       42.11%   14,443,527
IN    691,499      299,076       43.25%    7,233,059
MA    984,279      631,681       64.18%   17,709,893
MI  1,782,454    1,001,341       56.18%   29,078,945
MN    (State's initial claim data is n/a)  3,081,476
NC    502,777      268,930       53.49%    8,396,506
NJ    800,024      593,233       74.15%   20,375,078
OR    346,410      115,293       33.28%    4,124,322
PA  2,402,228    1,297,421       54.01%   39,283,873

Of these states, Wisconsin has by far the lowest percentage of PUA initial claims leading to the payment of benefits. As a consequence, very few PUA weekly certifications in Wisconsin are leading to the payment of PUA benefits. The weeks compensated in Wisconsin are significantly lower than all other states but Iowa, and Iowa is only lower than Wisconsin because the PUA initial claims filed in Iowa are 56% of the already low number of PUA initial claims filed in Wisconsin.

Outside of Iowa (in general a rural state), these other states are seeing both much higher numbers of PUA initial claims being filed and a much higher percentage of those PUA initial claims being approved.

Data for initial claims for regular unemployment benefits in Wisconsin is not much better. Here is the percentage of initial claims for regular unemployment benefits that have been paid since the pandemic started in March 2020.

ST  Ini. Claims  First Paymts   Percent
WI    1,503,897       415,110    27.60%
AR      529,685       209,554    39.56%
CO    1,508,834       646,831    42.87%
IA      668,514	      344,746	 51.57%
IL    4,051,684     1,513,292    37.35%
IN    2,128,074       663,556    31.18%
MN   (State's initial claim data is n/a)
MI    2,594,914     1,386,616    53.44%
NC    1,903,903       788,429    41.41%
NJ    2,297,069       902,070    39.27%
OR      914,583       497,657    54.41%
PA    3,230,852     1,500,655    46.45%

Again, Wisconsin has the lowest percentage of initial claims for regular unemployment benefits being paid. Prior to the pandemic, initial claims for regular unemployment benefits were being paid at a 38.81% clip, over 10% higher than what is happening since the pandemic started. Only Indiana, another state that like Wisconsin has made claim-filing extremely difficult, is the percentage of initial claims for regular unemployment being paid under 32%.

So, with all these initial claims being denied, claimants need to preserve their eligibility as much as possible. Since eligibility for PUA benefits is likely going to end after September 5th, claimants have until September 4th to file any new initial claims for PUA benefits.

Here is what you need to do for these backup PUA initial claims.

Identity the reason for the backup PUA initial claim

This new PUA initial claim form has the specified reasons for PUA eligibility listed.

• I have been diagnosed with COVID-19 or am experiencing symptoms of COVID-19 and am seeking a medical diagnosis.
• A member of my household has been diagnosed with COVID-19.
• I am providing care for a family member or a member of my household who has been diagnosed with COVID-19.
• A child or other person in my household for which I am the primary caregiver is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and such school or facility care is required for me to work.
• I am unable to reach my place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency.
• I am unable to reach my place of employment because I have been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
• I was scheduled to commence employment and do not have a job or am unable to reach the job as a direct result of the COVID-19 public health emergency.
• I have become the breadwinner or major support for my household because the head of the household has died as a direct result of COVID-19.
• I quit my job as a direct result of COVID-19.
• My place of employment is closed as a direct result of the COVID-19 public health emergency.
• I am self-employed (including an independent contractor and gig worker) and experienced a significant reduction of my customary or usual services because of the COVID-19 public health emergency.
• I was denied continued unemployment benefits because I refused to return to work or accept an offer of work at a worksite that, in either instance, is not in compliance with local, state, or national health and safety standards directly related to COVID-19. This includes but is not limited to, those related to facial mask wearing, physical distancing measures, or the provision of personal protective equipment consistent with public health guidelines.
• I provide services to an educational institution or educational service agency and am unemployed or partially unemployed because of volatility in the work schedule that is directly caused by the COVID-19 public health emergency. This includes, but is not limited to, changes in schedules and partial closures.
• I am an employee and my hours have been reduced or I was laid off as a direct result of the COVID-19 public health emergency.

If one of these pandemic job-loss reasons applies to you, then a backup PUA initial claim is possible.

If none of these pandemic job-loss reasons apply to you, then you probably do NOT qualify for PUA benefits and a backup PUA initial claim would be pointless.

In selecting one or more reasons, there should be little to no ambiguity or question for why that reason applies to you. If you need to explain the reason selected, then it probably does NOT apply. For example:

• The restaurant either closed to the public or it did not close (note, a dining room closed to the public is closed, even if the restaurant still serves take-out customers).
• A medical provider wanting you quarantined — period — is needed for the quarantine reason. Deciding to quarantine yourself out of your own personal health concerns does not count, unless you are a medical provider yourself.
• There must be an actual and significant reduction in work hours tied to Covid-19. If you normally worked around 20 hours a week, and you worked 18 hours a week here and there but 21 and 22 hours on other weeks, there does not seem to be an actual reduction in work hours tied to the pandemic even if you are making less money.
• You must be caring for someone in your household or sick yourself from Covid-19 or waiting on a test result for Covid-19. Just being sick and thinking the illness is related to Covid-19 is not enough.

In other words, select the reason or reasons that apply. You should not need to provide any kind of elaboration. And, if you only check the box for “none of the above,” then the Department will automatically deny your PUA initial claim because you have not identified a valid reason for granting you PUA benefits.

Identify the start date for the backup PUA initial claim

The second key piece of information you need is the date of your pandemic-related job loss. From the reasons listed above, identify the specific date that the event occurred.

If multiple reasons apply on different dates, then you will need to file separate initial PUA claims for each separate date.

If there are multiple reasons that apply for the same date, then select all of those reasons for the date. For instance, if your workplace closed on the same day that the childcare provider closed, then both the business closure reason and the primary caregiver because of closed childcare reason apply, and both should be selected. As long as the reasons occur in the same calendar week, they will apply for the same PUA initial claim.

How to file a backup PUA initial claim

First, try to file this new/backup PUA claim on the portal. Once you login to the portal, be careful where you click.

The Department has instituted a set of screening questions as well. Depending on how you answer these questions, you may end up in two options that prevent you from filing a new/backup PUA initial claim.

In option one, you want to avoid having a pending initial claim for regular unemployment benefits that keeps you from filing a PUA initial claim, especially since the Department is unlikely to have that initial claim for regular unemployment resolved before September 4th.

So, if you end up with this option, you need to select “yes” for being denied regular unemployment insurance benefits even if the regular UI initial claim is still pending (since only 27% are being paid, your initial claim for regular unemployment benefits will likely be denied).

For option two, make sure the pandemic-related reasons for your PUA initial claim have changed from what you previously filed. A second reason in addition to the original reason is a legally sufficient change.

Finally, if manage to get through this screening process, here is what the on-line PUA initial claim form looks like.

If the on-line/portal option is not available, call the PUA support line at 608-318-7100 to see if you can file the PUA initial claims with a staffer. The staffer will likely take you through the same set of screening questions listed above.

Second, if the staffer refuses to take your initial claim over the phone, fill out the new PUA form and mail it and supporting documents to:

Pandemic Unemployment Assistance (PUA) Program
PO Box 7905
Madison WI 53707

Make sure to note the date you mail in this application and to keep copies of whatever you send in or submit.

As usual, look for paper copies in the mail about any decisions. Messages on the portal are generally NOT helpful.

Final notes

1. A backup PUA claim only applies to those currently receiving regular unemployment benefits or PEUC benefits, those who have had their PUA initial claim denied, or those whose initial PUA claim has yet to be approved.
2. Those currently receiving PUA benefits should probably NOT file a backup PUA claim.
3. Those whose PUA claims were denied, and those denials are currently in litigation (either with a hearing before an administrative law judge or an appeal before the Labor and Industry Review Commission) should consider filing a backup PUA claim on the chance that they lose their current case.
4. Those who filed late appeals for PUA claims being denied or who did not appeal those denials should consider filing a backup PUA initial claim if the original PUA initial claim cannot be revived. See the discussion of late appeals in the unemployment primer and the discussion of bad advice allowing late appeals or withdrawn appeals to be re-activated in delays, part 2 about how to revive these kinds of claims. If you can revive your claim in the next few weeks, do NOT file a backup PUA initial claim.
5. For claimants receiving PEUC benefits who do not have a pandemic-related job loss (see above), then a backup PUA claim is not an option. You cannot extend your benefits past the week ending 9/4/2021 with PUA benefits. Any benefits paid after Sept. 4th will depend on whether you can establish a new benefit year based your prior wage earnings. For what is a benefit year, see the discussion of benefit year eligibility in the unemployment primer.

As previously described, the premature end for PEUC benefits and other federal supplements like PUC and PUA will have problematic economic consequences for everyone.

Documentation for PUA claims

Update (21 Aug. 2023): In Colleen Koch, PUA Hearing No. 21603562MD (28 Jan. 2022), the Commission held that the Department’s notice for the PUA documentation requirement is legally defective, as the notice lacked notice language for filing the documentation late with good cause. The Department, however, has never corrected its PUA documentation notice. Accordingly, the deadline for satisfying the PUA documentation requirement has been extended indefinitely, since all notices of this requirement are legally defective.

So, all claimants who have allegedly failed to satisfy the PUA documentation should be allowed to resubmit their documentation at any time, as the deadline for submitting the required documentation is legally defective.

Note: A lack of a timely appeal of a PUA documentation determination may still prevent a claimant from getting a second chance to submit the required PUA documentation. For the standards to determine whether a late appeal is allowable or not, see the discussion of late appeals in the unemployment primer.

Note: Why the Department has not applied for a blanket waiver in regards to its inadequate notice per the provisions in UIPL 20-21 (5 May 2021) 7-10 and UIPL 20-21 Change 1 (7 Feb. 2022) at 9-18 (specifically noting that an inadequate notice by the state agency constitutes grounds for a blanket waiver, id. at I-4) for this PUA documentation requirement is a mystery. Given the legally defective notice, this issue would certainly qualify for a blanket waiver, saving both the Department and claimants a great deal of headache.

Update (24 May 2021): The May 20th deadline date listed below is a general guess at what the Department is doing. The documentation date for your specific case will vary. For example, those who are just being paid PUA benefits now and whose PUA claims include weeks from the summer of 2020 will probably have until late August 2021 to provide the required documentation. And, those who have new PUA claims that start no earlier than December 2020 will only have 21 days from their initial claim date to provide the requested documentation.

The intent here is to proactive and provide the required documentation ASAP to avoid the administrative sludge being created for you here.

Update (13 May 2021): Here is a PDF document I prepared for folks in a support group that will be contacting others about this PUA documentation requirement.

The Continued Assistance Act included a new documentation requirement for PUA claims. In my original post on the Continued Assistance Act, I explained:

There is now an additional documentation requirement for PUA claims. Claimants will have to provide documentation regarding their employment, self-employment, or the job offer/work they were slated to start for any weeks PUA weeks for the week ending 1/2/2021 or later.

• New PUA claims filed on Jan. 31st or later will have to provide that documentation within 21 days of the claim.
• Continued PUA claims or initial PUA claims filed prior to Jan. 31st will have 90 days to provide this documentation.

This documentation requirement only applies when PUA benefits are paid for weeks in 2021. If you only collect PUA benefits for 2020 weeks claimed, then you do NOT need to provide this additional documentation.

But, those PUA claimants who have filed for PUA benefits for weeks in 2021, you NEED to provide this documentation even if you have previously submitted this same documentation to the Department already.

And, this documentation MUST be submitted VERY SOON. The Department sent this notice dated 19 Feb. 2021 to many claimants and indicated that the documentation had to be submitted within 90 days of this letter. That means the documentation MUST BE SUBMITTED to the Department no later than 20 May 2021.

So, 20 May 2021 may be when additional documentation is due in your case.

This additional documentation needs to be mailed to:

PUA
PO Box 7905
Madison WI 53707

Or faxed to 608-327-6193. Include a cover page that states: ATTN: PUA, your full name, your social security number, and the number of pages being faxed.

Make sure to keep a copy of what you send in as well as a record of when you mailed or faxed this documentation in.

For those PUA claimants who are filing certifications for weeks in 2021, below is the kind of documentation you need to provide the Department, organized by the type of reason for your PUA benefits. Note that many of the PUA claim reasons do not require any documentation. Only those reasons connected to a loss of employment because of the pandemic require this additional documentation. Here is what you need to provide (if “no additional documentation needed” is listed below, then you are fine and do not need to support any additional documentation).

PUA claim reasons

I have been diagnosed with COVID-19 or am experiencing symptoms of COVID-19 and am seeking a medical diagnosis.

No additional documentation needed.

A member of my household has been diagnosed with COVID-19.

No additional documentation needed.

I am providing care for a family member or a member of my household who has been diagnosed with COVID-19.

No additional documentation needed.

A child or other person in my household for which I am the primary caregiver is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and such school or facility care is required for me to work.

No additional documentation needed.

I am unable to reach my place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency.

No additional documentation needed.

I am unable to reach my place of employment because I have been advised by a health care provider to self-quarantine due to concerns related to COVID-19.

No additional documentation needed.

I was scheduled to commence employment and do not have a job or am unable to reach the job as a direct result of the COVID-19 public health emergency.

Letters offering employment, statements/affidavits by individuals (with name and contact information) verifying an offer of employment.

If self-employment was slated to start up but was halted because of the pandemic, provide business licenses, state or Federal employer identification numbers, written business plans, a lease agreement, or some other documentation of the planned start of the gig work.

I have become the breadwinner or major support for my household because the head of the household has died as a direct result of COVID-19.

No additional documentation needed.

I quit my job as a direct result of COVID-19.

No additional documentation needed.

My place of employment is closed as a direct result of the COVID-19 public health emergency.

Paycheck stubs, earnings and leave statements showing the employer’s name and address, or W-2 forms.

For employees of such organizations like the Peace Corps, AmeriCorps, and educational or religious organizations where traditional employment relationships may not exist, there are additional options, like documentation of work being done provided by these organizations or signed affidavits from persons verifying the individual’s attachment to such organizations is allowed.

I am self-employed (including an independent contractor and gig worker) and experienced a significant reduction of my customary or usual services because of the COVID-19 public health emergency.

State or Federal employer identification numbers, business licenses, tax returns, business receipts, screen shots of documented earnings and work performed and the dates for such work, or signed affidavits from persons verifying the individual’s self-employment

I was denied continued unemployment benefits because I refused to return to work or accept an offer of work at a worksite that, in either instance, is not in compliance with local, state, or national health and safety standards directly related to COVID-19. This includes but is not limited to, those related to facial mask wearing, physical distancing measures, or the provision of personal protective equipment consistent with public health guidelines.

No additional documentation needed.

I provide services to an educational institution or educational service agency and am unemployed or partially unemployed because of volatility in the work schedule that is directly caused by the COVID-19 public health emergency. This includes, but is not limited to, changes in schedules and partial closures.

Pay stubs or earnings and leave statements showing the employer’s name and address, W-2 forms, some kind of documentation of work being done which is provided by these organizations, or signed affidavits from persons verifying the individual’s attachment to such organizations.

I am an employee and my hours have been reduced or I was laid off as a direct result of the COVID-19 public health emergency.

Pay stubs or earnings and leave statements showing the employer’s name and address, W-2 forms, some kind of documentation of work being done which is provided by these organizations, or signed affidavits from persons verifying the individual’s attachment to such organizations.

Final thoughts

Keep in mind that the PUA benefits you are claiming in 2021 may be based on multiple reasons. For instance, your PUA claim could be based on your employer closing because of the pandemic, but you also may have been quarantined because of Covid-19 for two weeks in February 2021. So, if your PUA claim for weeks in 2021 is based on any of the reasons identified above for which additional documentation is needed, including a job loss dating back to 2020, then you need to provide the indicated documentation.

The penalty for failing to submit this additional documentation is repayment of all PUA benefits for weeks in 2021:

[For] the individual [who] fails to provide documentation or [who] fails to show good cause to have the deadline extended, an overpayment must be established for all of the weeks paid beginning with the week ending January 2, 2021. This is because the individual cannot be ineligible for a week of unemployment ending before the date of enactment solely for failure to submit documentation.

UIPL No. 16-20 Change 4 (8 Jan. 2021) at I-12.

New PUA benefit options

The Department is sending out a new notice regarding PUA eligibility that is creating much confusion.

This notice is the Department’s effort to comply with UIPL No. 16-20 Change 5 (25 Feb. 2021). This program letter addresses various issues with PUA benefits that exist in some states. Unfortunately, all of the issues raised in this program letter exist in Wisconsin. As a result, this new PUA notice reflects some massive changes in PUA eligibility that tmj4 covered in early April of this year.

New PUA eligibility criteria

Partial loss of work because of the pandemic

This provision is a major change in eligibility in Wisconsin, as the Department previously denied all PUA claims for anyone (other than independent contractors or those quarantined because of Covid-19) whose employer did not completely shut down. The Department also mistakenly canceled PUA eligibility whenever a PUA claimant returned to any kind of work. Pursuant to this program letter:

Individuals experiencing a reduction of hours or a temporary or permanent lay- off. The Department approves the following COVID-19 related reason for an individual to self-certify for PUA eligibility: “An individual is an employee and their hours have been reduced or the individual was laid off as a direct result of the COVID-19 public health emergency.”

* * *

Generally, individuals in covered employment who are laid off, are experiencing a reduction in hours, or are working part-time as a result of partial business closure would qualify for regular UC (or PEUC or EB) and therefore would not be eligible for PUA. However, such individuals may not be eligible for regular UC (or PEUC or EB) because, for example, they lack sufficient wages to qualify, have a previous disqualification, or have exhausted regular UC, PEUC, and EB. This expanded COVID-19 related reason establishes a circumstance under which they may self-certify eligibility for PUA.

The individual must report any earnings from the reduced hours when filing continued claims and such amounts must be deducted from the PUA weekly benefit amount in accordance with the state law. See Section C.16.c. of Attachment I to UIPL No. 16-20, Change 4.

UIPL No. 16-20 Change 5 at 8-9 (emphasis in original, footnote removed). Because Wisconsin denies regular unemployment benefits to disabled workers receiving SSDI benefits, the vast majority of PUA claimants are now obviously eligible under this provision. So, tens of thousands of PUA claims in Wisconsin must now be re-examined in light of this provision.

Of course, a sizable chunk of PUA claimants are still waiting on hearings for their PUA claims. So, those claimants should continue to wait for their hearings, as those hearings will be quicker than any new PUA claim.

Only those claimants who had their PUA claims originally denied and saw that denial affirmed at a hearing (and did not petition the Labor and Industry Review Commission for further review) or did not appeal that original denial should file a new PUA claim right now. Again, having your claim heard now at a hearing will be quicker than filing a new PUA claim.

Likewise, you should NOT withdraw a currently filed appeal concerning your PUA eligibility. If nothing else, the year long wait on your PUA benefits should be sufficient evidence that having your current PUA claim heard at a hearing or through Commission review will be imminently quicker than any new PUA claim that will take another year to process.

Note: This “new” PUA eligibility provision represents a return to how most states were handling PUA claims prior to UIPL No. 16-20 Change 4. See Pandemic (PUA) claims are being denied for invalid reasons (10 Nov. 2020).

School-year employees

Normally, school employees are NOT eligible for unemployment benefits because of reasonable assurance. But, under this program letter educational employees who lose work because of pandemic-related scheduling volatility with that educational institution are now eligible for PUA benefits.

However, the individual may be eligible for PUA if they have other non-educational employment from which they are able to self-certify that they are unemployed, partially unemployed, or unable or unavailable to work for a different COVID-19 related reason. As described in Section 4.e.i. of UIPL No. 10-20, Change 1, wages from the educational institution may not be used to calculate the individual’s PUA WBA.

If school schedules or planned school openings are disrupted and an individual is found to no longer have a contract or reasonable assurance to return in the subsequent year or term, then they can establish eligibility going forward as described in subparagraph (A) under this new COVID-19 related reason or another COVID-19 related reason that is applicable to their situation.

UIPL No. 16-20 Change 5 at 7. In addition, educational employees not subject to reasonable assurance may also qualify for PUA benefits under this new provision if the school schedule is canceled up upended because of the pandemic and those educational employees do not otherwise qualify for regular unemployment benefits. Id.

Unsafe working conditions connected to the pandemic

A common problem in Wisconsin during this pandemic has been the denial of regular unemployment benefits for those workers who are taking the pandemic seriously and actually following public health orders by staying home rather than working (and, in many cases, with the support of their employers).

The Labor and Industry Review Commission has begun to correct this problem. See discussions of recent Commission decisions here and here.

But, it remains to be seen to what extent the Department will follow these decisions (recent initial determinations indicate that the Department is still ignoring court precedents on substantial fault). So, this new eligibility provision provides explicit PUA eligibility to those employees concerned with public health.

An individual is generally denied unemployment benefits if the state determines that the work is suitable and the individual did not have good cause for refusing such work. This new COVID-19 related reason applies only to individuals who had already been receiving unemployment benefits but were determined to be ineligible or disqualified under state law because they refused an offer of work at a worksite that was not in compliance with local, state, or national health and safety standards directly related to COVID-19. This is a separate COVID-19 related reason from item (ii) of Section 2102(a)(3)(A)(ii)(I) of the CARES Act, which provides eligibility to an individual who quits their job as a direct result of COVID-19.

For example, an individual may self-certify under this new COVID-19 related reason who has previously been denied because the state law does not consider health and safety standards when assessing suitability or good cause, or who has previously been denied because the health and safety standards considered under state law are more restrictive than the local, state, or national COVID-19 health standards.

UIPL No. 16-20 Change 5 at 5-6.

In light of this program letter, claimants now have two options to pursue when losing work because an employer is either ignoring public health orders or a claimant is seeking to follow those orders — the Commission precedents cited above or this new PUA eligibility provision. Furthermore, there will be situations where employers are ignoring public health mandates where this new provision will apply.

An individual was laid off in October 2020 and began receiving regular UC. The individual received a new job offer in January 2021, however,the new work site was unsafe due to non-compliance with physical distancing measures under state law. The individual was disqualified from continued receipt of regular UC under state law. The individual is now eligible to apply for PUA under this new COVID-19 related reason.

UIPL No. 16-20 Change 5 at 6.

Backdating of PUA claims

Per this program letter, these three new eligibility provisions are available to PUA claimants retroactive to their pandemic-related job loss.

For individuals with a PUA claim filed on or before December 27, 2020, the expanded COVID-19 related reasons provided in Section 4.a. of this UIPL are to be applied retroactively based on the effective date of an individual’s existing PUA claim.

UIPL 16-20 Change 5 at 12. Only those individuals filing a new PUA claim will be limited to early December 2020 for back-dating their PUA claim. Id. at 13.

Consistent claim-filing requirements and options

The second page of the new PUA notice is taken directly from UIPL No. 16-20 Change 5 at I-1 to I-2, which mandates this form for PUA claims. In addition, this program letter requires that:

• PUA claimants be permitted to select more than one Covid-19 related reason for their PUA claim. UIPL No. 16-20 Change 5 at 10.

As another example, an individual may be unable to work because they are the primary caregiver of a child who is unable to attend school because the school is closed to in-person instruction as a direct result of the COVID-19 public health emergency. That same individual may also be immunocompromised and unable to reach their place of employment because they have been advised by a health care provider to self-quarantine. Under these circumstances, the individual may self-certify that they are unable or unavailable to work under both items (dd) and (ff) of Section2102(a)(3)(A)(ii)(I) of the CARES Act.

• PUA claimants must be allowed to select different Covid-19 reasons for each weekly certification. Id.

To continue the examples in paragraph B., the school may reopen in a subsequent week to provide in-person instruction. With this change in circumstances, the first and second individuals may no longer self-certify under item (dd) of Section 2102(a)(3)(A)(ii)(I) of the CARES Act because the school is no longer closed. However, both individuals may continue to self-certify under the other COVID-19 related reasons that are applicable to their respective situations.

• PUA claimants can now file weekly certifications and indicate they are not eligible for PUA benefits that week by selecting “no Covid-19 related reason” in order to keep their claim alive without needing to file a new initial PUA claim. Id. at 11.

Acknowledging that, along with an individual’s changing circumstances, an individual might continue to file after they are no longer unemployed, partially unemployed, or unable or unavailable to work because of a COVID-19 related reason, the initial claim application and continued claim forms must provide an option for the individual to self-certify that none of the COVID-19 related reasons apply.

The new PUA notice

The new PUA notice going out is intended to satisfy the following requirement:

States must notify every individual who had previously filed a PUA claim at any time while the PUA program was in effect, and was denied for any week because they were not unemployed, partially unemployed, or unable or unavailable to work for one of the COVID-19 related reasons available at the time. This notification must advise the individual of the opportunity to self-certify to the complete list of COVID-19related reasons, including the new criteria provided in Section 4.a. of this UIPL. Such notification must occur individually as described in Section C.28.of Attachment I to UIPL No. 16-20, Change 4.

UIPL No. 16-20 Change 5 at 11 (emphasis in original).

Note: The nature of this new form — a paper copy that must be scanned and submitted on-line or mailed/faxed in — indicates that it is a rushed response, as the Department has no mechanism yet on its portal for filing these new PUA claims. Indeed, the ability to file PUA initial claims seems to no longer be available on the portal. This development should raise some eyebrows, as the program letter itself instructed states to have all of its provisions enacted within a month of the program letter’s release, i.e., March 25th. See UIPL No. 16-20 Change 5 at 9 (DOLETA “expects many states will need until the end of March or later to have the new COVID-19 related reasons in place”).

It should also be noted that PUA weekly certifications simply are not possible if there is no PUA initial claim currently approved by the Department.

Next steps

As indicated on the new PUA notice being mailed out, the Department is combining a host of changes to PUA eligibility with the new PUA documentation requirements connected to the Continued Assistance Act. The only explanation provided by the Department for all these changes is a curt warning when connecting to the portal:

So, here is what PUA claimants should do.

1. If you have a current PUA claim or appeal pending in some way (a claim not yet approved or denied, or an appeal waiting for a hearing, or a petition for Commission review waiting for a decision from the Commission), wait on that claim or appeal being decided in your favor. Do NOT withdraw your appeal under the false pretense that a withdrawal will somehow speed up your claim.
2. I repeat: do NOT withdraw an appeal or let an appeal of a denied claim lapse.
3. If you have not already filed a PUA initial claim, then file a PUA initial claim with the new form. For dating when this new PUA claim should start, check the “no” box because this new claim will not have same date as a previous PUA claim and write in the date this new PUA initial claim should start.
4. If the appeals process for your first PUA claim has run and nothing is pending with that original PUA claim, then file a new PUA initial claim with the new form. For dating when this new PUA claim should start, check the “yes” box because this” new PUA claim” has the same date as your previous PUA claim and then write in the same date from the first PUA claim for when this new PUA initial claim should start.
5. Per the directions on the first page of the new form, with your new PUA claim include the relevant documentation now required. Even though Wisconsin has always required this documentation to establish benefit year eligibility and even if you have previously provided this documentation, you must provide this supporting documentation now with this new PUA initial claim.
6. If filing a new PUA initial claim with the new form, send the new PUA initial claim form along with the supporting documentation relevant to your specific PUA claim issue or issues to Wisconsin New PUA, PO Box 7905, Madison WI 53707. Use 2-day Priority Mail so that you get a tracking number. Do not send the documents via certified or registered mail.
7. Call the PUA help line at 608-318-7100 for any questions you might have. Make sure to take notes for any advice you receive, writing down what that advice was, the date of the phone call, and who you spoke with. But, if the staffer tells you to withdraw a claim, ignore that advice.