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 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. 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). Comparison with rules in adjacent states
Other states have waived or relaxed requirements related to work search and have temporarily provided flexibility regarding availability for work by executive order, administrative rule, or statute in response to the COVID-19 pandemic.
Minnesota has waived work search during the COVID-19 by Minn. Emergency Executive Order 20-05.
Illinois has, by emergency rule, waived work search requirements for claimants who are temporarily laid off as a result of COVID-19. Illinois has also, by emergency rule, provided a clarifying example to find claimants available for work if they are required to be at home with a child but could telework.
Michigan has suspended work search and increased eligibility for benefits to quarantined workers under Mich. Executive Order 2020-10.
Iowa has waived work search requirements due to the COVID-19 pandemic.
Summary of factual data and analytical methodologies
The Department reviewed EmR2006, other current Wisconsin administrative rules, the Governor’s Emergency Orders, federal unemployment compensation law and United States Department of Labor guidance, and emergency rules and orders in other states to maximize Wisconsin’s receipt of federal funding and to clarify the law for claimants during the COVID-19 pandemic. Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis
2019 Wisconsin Act 185 provided charging relief for employers for claims that are related to the public health emergency, but that relief ended for claims payable on or after December 27, 2020. Absent subsequent legislative action to provide further recharging relief under state law, employers may be impacted by this emergency rule. Under the Coronavirus Aid, Relief and Economic Security (CARES) Act, P.L. 116-136, section 2103, for employers subject to reimbursement financing, 50% of the benefits were to be charged to the federal government for claims between March 15, 2020 through December 26, 2020. That provision was extended for claims through March 14, 2020 by the Consolidated Appropriations Act, 2021, P.L. 116-133, Division N, Title II, Subtitle A, the Continued Assistance for Unemployed Workers Act of 2020. Reimbursement employers, therefore, continued to have partial relief from full charging for unemployment insurance benefits through the week ending March 13, 2021. Employers, including small businesses, may be charged for claims that might have been denied but for this rule if, for example, the claimants had not conducted four work search actions in each week (and if that requirement was not otherwise waived). Likewise, claimants deemed to meet able to work and available to work requirements for COVID-related reasons might have been denied absent the rule. It is not possible to quantify the effect of this rule on small business due to this variety of factors.
Fiscal Estimate and Economic Impact Analysis
The Fiscal Estimate and Economic Impact Analysis is attached.
Effect on small business
The rule may affect small businesses, as defined in s. 227.114 (1), Stats., if employees of small businesses are found to be eligible for unemployment benefits and if they would not have been previously eligible under the law in effect before this rule took effect. Agency contact person
Questions related to this rule may be directed to:
Janell Knutson, Director, Bureau of Legal Affairs
Division of Unemployment Insurance
Department of Workforce Development
P.O. Box 8942
Madison, WI 53708
Telephone: (608) 266-1639
Place where comments are to be submitted and deadline for submission
Mark Kunkel, Rules and Records Coordinator
Department of Workforce Development
P.O. Box 7946
Madison, WI 53707
Comments will be accepted until a date to be determined.
Section 1. DWD 127.01 (1) is amended to read:
