Waiver flexibility for Hurricane Katrina recovery

The signed letter includes both attachments. ETA also posts Attachment I and Attachment II as separate PDFs with the same text.

Signed packet (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2005/TEGL5-05.pdf):

EMPLOYMENT AND TRAINING ADMINISTRATION ADVISORY SYSTEM
U.S. DEPARTMENT OF LABOR
Washington, D.C. 20210
CLASSIFICATION: WIA/Waivers/Work-Flex
CORRESPONDENCE SYMBOL: OWI
DATE: September 15, 2005

ADVISORY: TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 5-05

TO: ALL STATE WORKFORCE ADMINISTRATORS
FROM: EMILY STOVER DeROCCO, Assistant Secretary
SUBJECT: Waiver Flexibility for Hurricane Katrina Recovery
RESCISSIONS: [blank]
EXPIRATION DATE: Continuing

1. Purpose. The purpose of this Training and Employment Guidance Letter (TEGL) is
to provide states with a list of provisions of the Workforce Investment Act (WIA)
that have previously been waived or new provisions that have not been waived but
are within the statutory waiver authority under the WIA regulations at 20 CFR
661.400. These waivers will provide states with increased flexibility to respond to
job seekers and business needs in hurricane-affected areas and areas receiving an
influx of evacuees. Included is an explanation of the flexibility provided by the
workforce flexibility (work-flex) provisions of the regulations.

2. Background. The Workforce Investment Act (WIA) section 189(i) allows the
Secretary of Labor to grant waivers of statutory and regulatory requirements, some
of which may impede a state’s ability to provide assistance to hurricane evacuees (20
CFR 661.400). Many states have taken advantage of the flexibility provided through
the waiver of these provisions. In addition, the statute, at section 192, allows a state
to submit a workforce flexibility (work-flex) plan, which allows the state to waive
statutory or regulatory requirements under title I of WIA, applicable to local areas.

3. Action Required. States interested in applying for waivers or becoming a work-flex
state should:

• Review the attached list of WIA provisions that have previously been waived
and new provisions that have not been waived but are within the statutory
waiver authority.

• Identify additional WIA provisions that are not listed but that the state would
like to submit in a waiver plan.

• Determine which of these provisions would be most beneficial to their state and
develop a waiver plan which briefly describes requirements to be waived,
actions to remove state or local barriers, the process for monitoring
implementation, the public comment process, and the related outcomes expected
from the waiver, as stipulated in 20 CFR 661.400 - 661.420. See attachment II for
a template of such a letter.

• Identify one or more statutory or regulatory requirements under title I of WIA
applicable to local areas or the Wagner-Peyser Act that the state would like
authority to waive and submit a work-flex plan as described in attachment I.
Once the state is identified as a work-flex state, it has the authority to identify
additional local level provisions to waive without further approval from the
Secretary of Labor.

• Submit the waiver/work-flex plan to: Assistant Secretary Emily Stover DeRocco,
U.S. Department of Labor, 200 Constitution Avenue, N.W., S-2307, Washington,
D.C. 20210. Please note that regular mail delivery in the DC area is inconsistent;
therefore, we recommend using an overnight delivery service. You also may
email this request attn: Christine D. Kulick, Federal Coordinator at
[email protected]. The review and approval of your request will be
expedited.

4. Inquiries. Please direct questions to Sean Kelly, Waiver Specialist, U.S. Department
of Labor at (202) 693-3994 or [email protected].

5. Attachments.

I. Provisions of WIA that May be Waived & Work-flex Plan Options
II. Waiver/Work-flex Plan Template

Attachment I

Provisions of WIA That May be Waived and Work-flex Plan Options

Waivers:

States may want to consider using the language provided to request one or more
of the following waivers:

1. Waiver of the funds transfer limitation at WIA section 133(b)(4) to permit the
state to approve local area requests to transfer up to 100 percent of local area
allocations between the WIA Adult and Dislocated Worker programs.

2. Waiver of the language that limits the authority to provide the activities
identified in WIA section 134 to the state. This waiver permits local areas to
request the use of up to 100 percent of local area formula allocation funds to
provide statewide employment and training activities.

3. Waiver of the reallocation provisions at WIA sections 128(c)(2) and 133(c)(2),
and 20 CFR 667.160, to permit the state to develop more flexible recapture
and reallocation policies.

4. Waiver of the required 50 percent employer match for customized training at
WIA section 101(8)(C). This allows local areas to offer a sliding scale match
based on criteria developed by the state for businesses impacted by the
hurricane and those training hurricane-impacted individuals.

5. Waiver of the employer reimbursement for on-the-job training at WIA section
101(31)(B) for hurricane-impacted businesses and businesses training
hurricane-affected individuals.

6. Waiver of performance provisions in WIA Section 136(b) and (c) for those
participants who were served in impacted state and local areas leading to the
displacement of their WIA participants. Because the local areas on the Gulf
Coast have lost their current WIA participants to other local areas, and in
many cases, other states, ETA may consider exclusion from the performance
measures of those participants who have been forced from their local area or
state due to the hurricane, although this would not allow states to opt out of
all reporting requirements.

7. Waiver of the limitation on use of funds for capitalization of businesses at
WIA section 181(e) to permit WIA funds to be used to capitalize a small
business up to $5,000 in concert with entrepreneurial or microenterprise
training.

8. Waiver of the requirement that local programs provide each of the ten youth
program elements at WIA section 129(c)(2) as options available to youth
participants. Such a waiver will allow affected local areas to focus on the
youth services most needed.

9. Waiver of 20 CFR 664.510 under WIA section 129 to permit the use of
Individual Training Accounts (ITAs) for youth.

10. Waiver of 20 CFR 664.450(b) under WIA section 129(c)(2)(I) that requires all
youth participants to receive some form of follow-up services for a minimum
duration of 12 months. In anticipation of the transitive nature of youth
participants displaced by the hurricane, many youth may receive services in
temporary locations and return back to their homes or move to new locations
and such youth could be included for a waiver of the 12 month minimum.

11. Waiver of WIA Section 123 requirement that eligible providers of youth
activities shall be identified on a competitive basis. In those areas impacted
by Hurricane Katrina, waivers can be considered where service providers
have diminished capacity or where there is a dearth of offerors.

Workflex:

States may also want to consider using the following language to request
designation as a work-flex state:

We are requesting designation as a work-flex state. Under this designation, we
would like to provide waivers of provider eligibility provisions applicable to
local areas under WIA section 122. We seek the flexibility to enable local areas to
provide training for individuals by instructors and providers they deem most
qualified, given the immediate demand for training and the loss of training
providers. The state will ensure that training providers are helping individuals
with skills in-demand that lead to sustainable employment. As other local level
barriers are identified during the recovery process, we hope to provide
additional waivers for local areas under the work-flex authority.

Attachment II
Waiver/Work-flex Plan Template

September __, 2005

The Honorable Elaine L. Chao
Secretary

United States Department of Labor
200 Constitution Avenue, N.W.
Washington, D.C. 20210-0002

Dear Secretary Chao:

As you know, my state was severely impacted by the huge influx of evacuees from the
states directly impacted by Hurricane Katrina. We have an immediate need for
increased flexibility to design and deliver workforce services that will allow us to
respond effectively to the disaster and its effects. Accordingly, we are requesting the
following Workforce Investment Act (WIA) waivers:

[identify the waivers from the attached list and/or additional provisions you

would like to waive, or the local provisions you would like authority to waive
under the work-flex option]

We are submitting these requests per the requirements for submission of a waiver plan
under WIA section 189(i)(4) and 20 CFR 661.420, [and the requirements for submission
of a work-flex plan under WIA section 192 and 20 CFR 661.430]. As required by 20 CFR
661.420(c)(2), we have determined that there are no state or local statutory barriers. The
waiver plan [and work-flex plan] will allow the state to immediately address the
workforce challenges facing the state. The precise programmatic and performance
outcomes will be negotiated with the ETA Regional Office within the next three months.
The state will monitor progress and ensure accountability for federal funds in
connection with these waivers by reviewing monthly expenditure, performance and
other reports submitted by local boards, through regularly scheduled calls or meetings
with local board directors, through regular contact with the ETA Regional Office
liaisons, and through its monitoring and performance accountability system. We have
posted the waiver [and work-flex] plan[s] on our Web site for review and comment, and
have consulted local boards and other stakeholders. We appreciate your consideration

of these requests and seek an expedited response so that we may move forward in our
efforts.

Sincerely,

Governor of State

Separate Attachment I (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2005/Provisions_of_WIA.pdf) and Attachment II (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2005/Waiver_Work-flex_plan_template.pdf) were checked against the packet pages.