The Wisconsin Department of Workforce Development adopts the following rule to renumber DWD 128.001 (2) (a); to amend DWD 127.01 (1) and to create DWD 127.01 (3m), 128.001 (2) (ag) and (aw), 128.01 (7), 128.02, and 128.025, relating to work search waivers, availability for work, and work available for people filing claims with the unemployment insurance program during the COVID-19 pandemic.
The Governor approved the scope statement for this rule, SS 013-20, on March 19, 2020. The scope statement was published in register No. 771A4, on March 23, 2020, and was approved by the Department on April 3, 2020. This rule was approved by the Governor on February 1, 2021.
Analysis Prepared by the Department of Workforce Development
Finding of Emergency
The Department seeks to create provisions in Chapters DWD 127 and 128 in order to implement federal law and guidance related to administering unemployment insurance benefit claims during the pandemic period the SARS-CoV-2 virus pandemic, which causes the coronavirus disease 2019 (in this Scope Statement, the virus and disease will be referred to as “COVID-19”). In particular, to address COVID-19, the Families First Coronavirus Response Act (FFCRA) (P.L. 116-127), Division D, Emergency Unemployment Insurance Stabilization and Access Act of 2020 (EUISAA) did the following: 1) section 4102(a) required states to modify or suspend work search requirements to receive Allotment II of the emergency administration grant and 2) section 4102(b) relaxed federal conformity requirements for work search, including by specifically allowing waiver of work search. Additionally, federal guidance from the U.S. Department of Labor (DOL) advised states to exercise flexibility in administering the unemployment compensation program to address the impacts of COVID-19. See, e.g., Unemployment Insurance Program Letter (UIPL) No. 10-20, dated March 12, 2020).
Additionally, by Executive Order # 72 (dated March 12, 2020), the Governor declared a public health emergency in order to protect the health and well-being of the states residents and directed state agencies to assist as appropriate in the states on-going response to the public health emergency. Furthermore, on March 13, 2020, the President declared a national emergency concerning the COVID-19 outbreak. On April 4, 2020, the President issued a major disaster declaration for Wisconsin due to COVID-19, retroactively to January 20, 2020. On March 18, 2020, the Governor issued Emergency Order # 7 in response to COVID-19 to assist individuals affected by the disease by temporarily easing eligibility requirements for unemployment benefits.
On May 9, 2020, the Department promulgated EmR2006 to supplant Emergency Order #7. The Joint Committee for Review of Administrative Rules (JCRAR) has extended EmR2006 for the maximum period allowed under s. 227.24 (2) (a), Stats. As a result, EmR2006 expires on February 2, 2021. However, as evidenced by Executive Order # 104 (dated January 19, 2021), the COVID-19 pandemic continues to threaten public peace, health, safety, and welfare. The Department never contemplated promulgating these rule changes into permanent rules. A permanent rule is not appropriate or allowed under federal law, as this rule will no longer be necessary after the threats to public peace, health, safety, and welfare caused by the COVID-19 pandemic have abated.
This emergency rule will allow the Department to respond to the spread of COVID–19 by waiving work searches for potentially thousands of claimants. For the week ending January 2, 2021, the Department received 25,005 weekly claims for federal Pandemic Unemployment Assistance, 31,936 weekly claims for federal Pandemic Emergency Unemployment Compensation, and 117,123 claims for regular state unemployment insurance.  All of those claimants would be required to conduct four work searches each week unless a waiver applies.
Additionally, the rule will ease eligibility for those claimants who would work but for COVID-related reasons, such as being quarantined or subject to any stay-at-home orders.
Statutes Interpreted
Section 108.04, Stats.
Statutory Authority
Sections 108.04(2)(bd) and 108.14 (2), Stats.
Explanation of Statutory Authority
The Department has specific and general authority to establish rules interpreting and clarifying provisions of ch. 108, Stats., unemployment insurance and reserves, and general authority for promulgating rules with respect to ch. 108, Stats., under section 108.14 (2), Stats.
Work search actions are statutory, but under s. 108.04(2)(bd), Stats., the “department may, by rule…if doing so is necessary to comply with a requirement under federal law or is specifically allowed under federal law: modify the availability of any [work search] waiver” or “[e]stablish additional [work search] waivers….” Federal law specifically allows waiver of work search to address COVID-19. EUISAA, P.L. 116-127, section 4102.
Related Statutes or Rules
This rule succeeds EmR2006, which is effective for claims filed through the week ending February 6, 2020, and will ease unemployment eligibility requirements during the COVID-19 pandemic. EmR2006 effectively waives work search due to the existence of the public health emergency by providing that a declared public health emergency constitutes the required four work search actions each week. This rule accomplishes the same result by temporarily waiving the requirement to complete four work search actions for each weekly claim.
Plain Language Analysis
This rule temporarily waives the requirement for claimants to complete four work search actions for each week that a claimant files an unemployment insurance claim.
This rule provides criteria for determining when unemployment insurance claimants are available for work during the COVID-19 pandemic. The rule also states that no work is actually available for employees affected by COVID-19 for the purposes of determining whether unemployment insurance claimants missed work available under section 108.04 (1) (a) to (bm), Stats.
The Department will repeal this emergency rule if it determines that the rule is no longer necessary to respond to the threat of COVID-19.
Summary of, and comparison with, existing or proposed federal statutes and regulations
Federal law requires that state laws conform to and comply with federal requirements. 20 C.F.R. § 601.5.
The emergency rule implements federal law regarding the requirements for work search. Under EUISAA, section 4102(a), the state was required to ease requirements to receive unemployment insurance, including waiving work search requirements, to address the impact of COVID-19 as a condition of receiving the state's share of about $9.457 million of the $500 million of federal funding to administer the states' unemployment insurance programs. Thus, the emergency rule, and its predecessors Emergency Order # 7 and EmR2006, demonstrate the steps that the state “has taken or will take to ease eligibility requirements and access to unemployment compensation for claimants, including waiving work search requirements. . . .” 42 U.S.C. § 1103(h)(3)(B).
EUISAA also specifically allows states to waive work search provisions to respond to COVID-19 without violating federal conformity requirements, which otherwise require work search requirements in a state's unemployment laws: “Notwithstanding any other law, if a State modifies its unemployment compensation law and policies with respect to work search . . . on an emergency temporary basis as needed to respond to the spread of COVID–19, such modifications shall be disregarded for the purposes of applying section 303 of the Social Security Act and section 3304 of the Internal Revenue Code of 1986 to such State law.” P.L. 116-127, s. 4102(b).
Further, the Department proposes to amend ch. DWD 128 to provide for eligibility provisions related to the availability for work and work available requirements for claimants who are quarantined or otherwise affected by COVID-19.
In administering the unemployment compensation program, federal conformity requirements generally require state law to mandate that unemployment benefit claimants to be available for work. See 42 U.S.C. § 503(a)(12); 20 C.F.R. §§ 604.3 and 604.5. However, to address the pandemic, the DOL advised states that “federal [unemployment compensation] framework gives states significant flexibility to determine standards for . . .availability to work . . . in the context of COVID-19.” UIPL10-20 (Mar. 12, 2020).
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