Questions and answers on 2009 EUC08 expansion

uipl23-08c6acc.pdf (https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2009/uipl23-08c6acc.pdf)

                                                           CLASSIFICATION
      EMPLOYMENT AND TRAINING ADMINISTRATION               EUC08
                   ADVISORY SYSTEM
                                                           CORRESPONDENCE SYMBOL
             U.S. DEPARTMENT OF LABOR
                  Washington, D.C. 20210                   OUI/DUIO
                                                           DATE
                                                               November 23, 2009

ADVISORY: UNEMPLOYMENT INSURANCE PROGRAM LETTER NO. 23-08, Change 6

TO:           STATE WORKFORCE AGENCIES

FROM:         JANE OATES /s/
              Assistant Secretary

SUBJECT:      Emergency Unemployment Compensation, 2008 (EUC08) - Program Expansion
              Question and Answers

1.     Purpose. To respond to states’ questions about the further expansion of the EUC08
       program.
2.     References. The Worker, Homeownership, and Business Assistance Act of 2009
       (Worker Assistance Act), Public Law No. 111-92, enacted on November 6, 2009; the
       Supplemental Appropriations Act, 2008, Title IV – Emergency Unemployment
       Compensation (EUC08), Public law 110-252, enacted on June 30, 2008; and
       Unemployment Insurance Program Letter (UIPL) Nos. 23-08 and 23-08, Changes 1, 2, 3,
       4, and 5.
3.     Summary. The Worker Assistance Act provides that its amendments are to be treated “as
       if included in the enactment of” the original EUC08 Act; therefore, all references to the
       program and benefit entitlement under the four tiers continue to be referred to as EUC08,
       even though two of the amendments were made in 2009. The Worker Assistance Act
       expanded the EUC08 program, for weeks of unemployment beginning after November 6,
       2009, in the following ways:
          •   It increased the maximum EUC08 Second-Tier entitlement from 13 weeks to 14
              weeks of benefits in all states, and this Tier is no longer triggered on by a state
              reaching a specified rate of unemployment;
          •   It created an EUC08 Third Tier providing up to 13 additional weeks of benefits
              (for a total of up to 47 weeks of EUC08) in states with a 13-week insured
              unemployment rate of at least 4 percent or a three-month average seasonally
              adjusted total unemployment rate of at least 6 percent;




 RESCISSIONS                                              EXPIRATION DATE
 None                                                     Continuing

        •   It created an EUC08 Fourth Tier providing up to 6 additional weeks of benefits
            (for a total of up to 53 weeks of EUC08) in states with a 13-week insured
            unemployment rate of at least 6 percent or a three-month average seasonally
            adjusted total unemployment rate of at least 8.5 percent.
        In addition, there are two provisions regarding the coordination of benefits:
        •   A state may continue to pay Extended Benefits (EB) prior to EUC08 under the
            amendments made by the Worker Assistance Act, to individuals who were in EB
            claims status at the time of the state’s implementation of the Act, as explained in
            this UIPL, notwithstanding the state’s prior election to pay EUC08 before EB.
            NOTE: This is a change from UIPL No. 23-08, Change 5. See Q&A D.1., in the
            Attachment to this Change 6.
        •   If a state determines that implementation of the increased entitlement to EUC08
            Second Tier (i.e., 13 to 14 weeks) would unduly delay prompt payment of
            EUC08, the state may elect to pay EUC08 Third Tier prior to payment of the
            increased amount of EUC08 Second Tier until such time as the state determines
            that the increased EUC08 Second Tier may be paid without undue delay.
     The expiration date and phase-out period described in UIPL No. 23-08, Change 4 has not
     changed. However, in applying the phase out, states will need to take into account that
     EUC08 Second Tier no longer has a trigger and, for affected states, take into account the
     new EUC08 Third and Fourth Tiers. Accordingly, if an individual exhausts EUC08 First
     Tier on or before December 31, 2009, the individual may qualify for EUC08 Second
     Tier. Further, if an individual exhausts EUC08 Second Tier or Third Tier on or before
     December 31, 2009, the individual may qualify for the next higher Tier, if an EUC08
     Third Tier or Fourth Tier period (whichever is appropriate) is either then in effect or
     subsequently ends (even if that period ends after December 31, 2009). However, an
     individual may not move to the next (a higher) Tier if s/he exhausts the prior EUC08 Tier
     after December 31, 2009. (In states where the week ending date is a Saturday, the last
     week of potential eligibility would be the week ending December 26, 2009.)
4.   Interpretation. The instructions in this document are issued to the states and cooperating
     state agencies as guidance provided by the Department of Labor (Department) in its role
     as the principal in the EUC08 program. States may not deviate from the operating
     instructions without the prior approval of the Department. The interpretations, policies,
     and procedures issued in this document supersede those previously issued in UIPL Nos.
     23-08 and 23-08, Changes 1, 2, 3, 4, and 5 to the extent that any inconsistencies exist.
5.   Guidance. This document provides a set of questions and answers regarding the
     expansion of the EUC08 program and sets forth additional operating instructions to assist
     states in implementing and administering the program.
6.   Action Requested. Administrators are requested to provide this information and
     instructions to the appropriate staff.
7.   Inquiries. Direct questions to the appropriate Regional Office.
8.   Attachment. Questions and Answers on the EUC08 Program Expansion

uipl23-08c6a1.pdf (https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2009/uipl23-08c6a1.pdf)

                     Attachment to UIPL No. 23-08—Change 6

           Questions and Answers on the EUC08 Program Expansion

A. Effective Date

    1. Question: What is the effective date of the EUC08 program expansion under the Worker
      Assistance Act?
      Answer: The first week payable under the changes made by the Worker Assistance Act
      is the first week of unemployment (as defined under state law) following the enactment
      of the bill, which was November 6, 2009. In most states, this means the first
      compensable week of unemployment is the week beginning November 8, 2009.
B. EUC08 Second Tier
    1. Question: Must states re-determine all existing EUC08 Second-Tier accounts?
      Answer: Yes. The amendments apply to all EUC08 Second-Tier accounts of otherwise
      eligible individuals.
C. EUC08 Augmentation and Order of Payment
    1. Question: Prior to passage of the Worker Assistance Act, individuals who exhausted
      EUC08 First-Tier benefits simultaneously with the ending of a state’s Second-Tier period
      were eligible to receive the next higher Tier benefits. Does the same rule apply to Third
      and Fourth-Tier benefits under the Worker Assistance Act?
      Answer: Yes. Individuals who exhaust any EUC08 Tier (whether through a partial or
      full weekly amount) in the same week as the qualifying period for the next higher EUC08
      Tier period ends will have their accounts augmented with the next higher Tier of EUC08
      benefits.
      Note: EUC08 Second-Tier no longer has an unemployment rate threshold; all states are
      paying up to 14 weeks of this tier. The Third and Fourth Tier period(s) will end when the
      state’s IUR or TUR falls below the applicable threshold unemployment rate(s).
    2. Question: May a state make payments of EUC08 in the following order:
      1) Pay 13 weeks of Second Tier; 2) Pay 13 weeks of Third Tier; 3) Pay week 14 of
      Second Tier?
      Answer: Yes, under certain circumstances. Section 4002(f)(2) of the EUC08 law, as
      amended by the Worker Assistance Act, allows states to make the payment of the “extra”
      week of EUC08 Second Tier following the payment of the EUC08 Third Tier if the state
      determines that paying the increased EUC08 Second Tier would unduly delay the prompt
      payment of any of the EUC08 entitlements. This option is available until such time as
      the state determines that the enhanced Second Tier benefits may be paid without undue
      delay.
      The Department recognizes that whether an “undue delay” exists may vary depending on
      the situation for different groups of individuals. For example, for individuals who



      exhausted EUC08 Second Tier prior to the amendments, a state may find that payment of
      “week 14” prior to payment of Third Tier to individuals would unduly delay payment of
      any EUC08 under the Worker Assistance Act. However, states may also find that
      individuals exhausting EUC08 First-Tier benefits who are newly eligible for EUC08
      Second-Tier benefits may be paid the additional “14th week” without any “undue delay.”
      Thus, it is permissible to provide differing treatment by paying EUC08 Third-Tier
      benefits to one group prior to “week 14” of the EUC08 Second Tier while also paying
      “week 14” of EUC08 Second Tier prior to EUC08 Third Tier to another group.
    3. Question: If individuals exhaust EUC08 First-Tier benefits on or before December 31,
      2009, are they then potentially eligible for all other EUC08 benefits under any Tier after
      that date, assuming the state is triggered “on” (EUC08 Second Tier does not depend upon
      a trigger) to the appropriate Tier?
      Answer: No. Section 4007(b)(2) of the EUC08 law contains a “non-augmentation” rule,
      which prior to the amendments under the Worker Assistance Act prohibited
      augmentation with EUC08 Second-Tier benefits after December 31, 2009. This has now
      been amended to include references to EUC08 Third and Fourth Tiers.
      Specifically, Section 4007(b)(2) provides that there will be no Second-Tier, Third-Tier or
      Fourth-Tier augmentation “[i]f the amount established in an individual’s account under
      subsection (b)(1) is exhausted after December 31, 2009.” Subsection (b)(1) of Section
      4007 provides for a phase-out of EUC08 payments, subject to the non-augmentation rule
      in subsection (b)(2). Specifically, subsection (b)(1) of Section 4007 applies to “amounts
      remaining in an account established under section 4002 . . . .” Thus, when the “amount[]
      remaining in an account established under Section 4002,” whether a First, Second, or
      Third-Tier amount, is exhausted after December 31, 2009, augmentation is prohibited.
D. Extended Benefits Coordination Rule
    1. Question: If a state elects to pay EB prior to EUC08, for which individuals may the state
      do so (that is, which individuals will qualify)?
      Answer: Under Section 4002(f)(1) of the EUC08 law, a state may pay EB to an
      individual prior to EUC08 under the Worker Assistance Act amendments, “if such
      individual claimed extended compensation for at least 1 week of unemployment after the
      exhaustion of emergency unemployment compensation under subsection (b) [relating to
      the establishment of an EUC08 account] (as such subsection was in effect on the day
      before the date of enactment of this subsection).” Hereafter, this provision will be
      referred to as the “EB coordination rule.” There are several criteria that must be met
      before a state may pay EB under the EB coordination rule:
          •   First, EB may be paid prior to EUC08 based upon the Worker Assistance Act
              amendments. This means that EB may only be paid prior to the “extra” week of
              EUC08 Second-Tier benefits and EUC08 Third and Fourth-Tier benefits.
          •   Second, the individual must have claimed at least one week of unemployment
              “after the exhaustion of” an EUC08 account based upon the statute as in effect
              prior to the Worker Assistance Act amendments. This means that the individual
              must have exhausted EUC08 First-Tier benefits and all EUC08 Second-Tier
              benefits, except for the “extra” week under the Worker Assistance Act



           amendments, in order for the state to pay EB.
       •   Third, the individual must have “claimed extended compensation for at least 1
           week” after the exhaustion of the pre-Worker Assistance EUC08 benefits
           described in the preceding paragraph. The past-tense “claimed extended
           compensation for at least 1 week” means that the week “claimed” must have
           occurred in the past. The purpose of this language is to permit states a transition
           period with respect to individuals who were receiving EB. Thus, it affords states
           the option of continuing to pay EB to individuals who had “claimed” EB after
           exhausting “old” EUC08, rather than switching them to the “new” EUC08. In
           order to effectuate this transition period, the Department interprets this third
           requirement as meaning that EB must have been “claimed” for a week during, or
           prior to, the state implementing the amendments made by the Worker Assistance
           Act.
   The first week of EUC08 payable under the Worker Assistance Act amendments (in
   states where the week begins on Sunday) was the week beginning November 8, 2009, and
   ending November 14, 2009. Thus, all states were in the process of implementing the
   amendments that week. Recognizing that some states might take a little longer to
   implement these amendments, the Department will allow states to apply the EB
   coordination rule where the first week(s) of EB claimed occurs as late as the week of
   November 29, 2009, for week(s) ending November 28, 2009. Thus, for example, if an
   individual’s EB claim is effective as late as the week beginning November 22, 2009, even
   though the individual does not claim that first week until the following week, the state
   may apply the EB coordination rule, assuming the other criteria are met.
   Note: This is a change from the guidance in UIPL No. 23-08, Change 5, Q&A, A.5,
   which took the position that, in order to apply the EB coordination rule, the individual
   had to have been in EB claims status at the time of enactment of the Worker Assistance
   Act.
   Further Note: Whether or not a state elects to keep individuals in EB status under the
   EB coordination rule, no EUC08 payments may be made for any week of unemployment
   beginning after May 31, 2010, when the EUC08 program terminates.
2. Question: Under the EB coordination rule, a state elects to pay EB prior to EUC08.
   How does this affect when the state re-determines eligibility for EUC08 Second Tier and
   when the state augments with Third-Tier benefits?
   Answer: The premise behind the EB coordination rule is that the state chooses to pay
   EB prior to any EUC08 for which the individual is otherwise eligible. Thus, individuals
   receiving EB under the coordination rule will be treated as though they were receiving
   EUC08, instead of EB, for purposes of determining when they exhausted an EUC08 Tier
   and when they are entitled to augmentation of their accounts with the next higher Tier.
   This means that if an individual exhausts an EUC08 tier after receiving EB under the
   coordination rule, s/he may still qualify for either Second or Third Tier benefits even if
   this occurs after December 31, 2009, if otherwise eligible.
   For example, the state elects under the EB coordination rule to continue paying EB to an
   individual otherwise eligible for EUC08. Therefore, the individual is entitled to have




      his/her EUC08 account immediately re-determined for the “extra” week (i.e., week 14) of
      EUC08 Second Tier the first week after November 6, 2009, the date of enactment of the
      Worker Assistance Act. The individual is entitled to have his/her account augmented
      with EUC08 Third Tier (assuming the state is in an EUC08 Third-Tier period) effective
      immediately following the “extra” week of EUC08 Second Tier, just as though s/he had
      exhausted EUC08 Second Tier when EB was paid instead of EUC08 and even if the
      exhaustion of EB or the payment of the “extra” week (week 14) occurs after December
      31, 2009.
    3. Question: If an individual is disqualified under the EB rules for not making a systematic
      and sustained search for work, will the individual remain disqualified for EUC08?
       Answer: No. The EB work search requirements apply only to individuals who are
       receiving EB; these EB work search requirements do not apply to EUC08. Therefore, an
       individual who is disqualified from receipt of EB due to not meeting the EB work search
       requirements will qualify for EUC08, if otherwise eligible. (Note: If the individual
       would have been disqualified for failure to meet work search or “able and available”
       requirements under state law/policy, such disqualification may remain in effect).
    4. Question: If an individual is disqualified under the EB rules for refusal of suitable work
      or referral to suitable work, will the individual remain disqualified for EUC08?
      Answer: That depends. As noted above, the EB requirements for a systematic and
      sustained search for work are unique to EB, and apply only to that program. However, an
      individual may be disqualified for refusing, or not accepting a referral to, suitable work
      under the state unemployment compensation (UC) law, although the EB requirements are
      generally stricter. Section 4001(d)(2) of the EUC Act provides (with exceptions not
      relevant here) that the terms and conditions of the state UC law apply to claims for
      EUC08. Thus, if the individual would have been disqualified under the state UC law for
      refusing, or not accepting a referral to, suitable work, the disqualification will remain in
      effect for EUC08; however, if the disqualification resulted solely because it was
      determined under the stricter EB rules, then the individual will qualify for EUC08, if
      otherwise eligible.
    5. Question: May a state that is in an EB period stop applying the EB coordination rule at
      any time, for example, stop EB the week ending December 19, 2009, and begin paying
      EUC08 Third Tier to these claimants?
      Answer: Yes. States electing to apply the EB coordination rule may at any future point
      decide to stop applying the rule. This might occur, for example, when the state
      determines that switching individuals to EUC08 would not disrupt payment to
      individuals. However, when the state does so, it must then pay EUC08 prior to EB for all
      claims, because all individuals must be treated on an equal basis.
E. EUC08 Claim Applications
    1. Question: Will claim applications (Third/Fourth Tier) be required for individuals who
      have already exhausted all EUC08 First and Second Tier and EB benefits?
      Answer: When there has been a break in claim certification, the state will need to take a
      claim application to ensure there are no issues and that there has been no intervening
      employment, etc., that would disqualify the individual. When the individual is in



      continuing claim status, the state will not need to take an application.
F. Multiple EUC08 Claims
    1. Question: Section 3(d)(3) of the Worker Assistance Act states that the “account of an
      individual may be augmented not more than once….” Why, therefore, would states
      augment more than the last EUC08 claim paid?
      Answer: Section 4002(a) provides for the establishment of “an emergency
      unemployment compensation account with respect to such individual’s benefit year”
      based on a state UC claim. Thus, an individual’s EUC08 account is tied to a specific
      “benefit year.” If an individual establishes an EUC08 account on a benefit year and,
      subsequently, establishes a new (second) benefit year based on subsequent work, s/he
      may establish a second EUC08 account on that new (second) benefit year, if otherwise
      eligible. See attachment to UIPL No. 23-08, Change 3, Section D.
    2. Question: If a claimant has two EUC08 accounts, is it correct that states must augment
      and pay the earlier EUC08 account first before augmenting and paying benefits on the
      second (later) EUC08 account even though it may mean stopping the individual’s
      payments (effective November 8, 2009) on the second account to shift back to the first
      account (causing a delay in continued payments)?
      Answer: States are advised to pay the oldest EUC08 account first. However,
      recognizing the delays in payment that may occur, the Department will not object if a
      state continues payment on the most recent EUC08 account until such time that the state
      is able to shift back to the oldest account without undue delay in making continued
      payments to the claimant.