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.”

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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:

New PUA notice

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.