TEGL_20-11_Chg1_Att.pdf

ETA Advisory File Text

1 Attachment to TEGL No. 20 -11 Change 1 Reemployment Services and Reemployment and Eligibility Assessments RES REA For Recipients of Emergency Unemployment Compensation EUC Questions and Answers A. Requirement to Participate in RES REAs 1. Question When a claimant is provided notification about the scheduled RES REA including consequences for failing to report and s he does not report as scheduled and does not contact the agency regarding his her failure to report may the state apply its state law provisions and issue an indefinite denial Answer Yes. Section 4001 d 2 of the Supplemental Appropriations Act 2008 provides with exceptions not relevant here that the terms and conditions of the state law that apply to claims for regular compensation apply to EUC. Therefore if a claimant fails to report as required for the EUC RES REA the state will apply its provisions on ineligibility for unemployment compensation UC due to failure to report until the claimant complies with the reporting requirements often called an indefinite denial . 2. Question How many times does the state need to accommodate a claimant in rescheduling the EUC RES REA for example if an RES REA has been rescheduled once and the claimant asks that it be rescheduled again is the state required to accommodate the claimant by rescheduling two or more times Answer There is no categorical number of times a state needs to accommodate a claimant s request to reschedule. As with other types of UC reporting requirements the states must consider a claimant s reason s for failing to report for a scheduled RES REA and or requesting rescheduling and apply its state UC law. For example a state may reasonably conclude there is good cause to grant a claimant s request to reschedule due for example to a job interview scheduled at the same time as the RES REA. In this case the state is simply rescheduling the time for the claimant to meet the requirement it is not waiving the requirement altogether for which the state must determine there is justifiable cause. However in other cases states will need to conduct appropriate fact finding to determine whether a one week or an indefinite denial is appropriate and whether any other eligibility issues exist in particular in cases where a claimant requests rescheduling more than once. 3. Question TEGL No. 20-11 Section 5.g. indicates that a waiver of the RES REA requirement is allowed if the state UC agency determines that there is justifiable cause for failure to participate or to complete participation. Does good cause under the state UC law constitute justifiable cause for purposes of this requirement Answer Yes as further provided by TEGL No. 20-11 Section 5. g. States may waive participation in the RES REA if the reason for failure to report or participate in reemployment services or reemployment and eligibility assessments is considered good cause under the state s UC law. 2 4. Question Is it appropriate under the justifiable cause exception to waive the RES REA participation requirement when an EUC claimant is working part-time and receiving partial benefits Answer Yes if the state has waived the claimant s work search requirement for that reason. However if the state still requires such claimant to look for work and register with the employment service the claimant must participate in RES REA activities since the requirement s purpose is help claimants return to work. 5. Question Is it appropriate under the justifiable cause exception to waive the RES REA participation requirement when an EUC claimant is participating in a work- sharing arrangement short-time compensation STC Answer Yes. Individuals who are participating in an STC program also called work- sharing are job attached and may be excused from EUC RES REA participation on that basis. 6. Question The EUC law as amended authorizes states to waive the requirement for participation in EUC RES REA activities where an individual has completed participating in such services or activities. Please explain how the Department of Labor the Department interprets the phrase has completed participating in such services or activities for the purpose of providing a waiver of the EUC RES REA participation requirement. Answer For purposes of the participation requirement in new section 4001 i 3 the Department interprets completion of RES REA activities to include completion of similar services while collecting regular UC or other types of unemployment benefits. TEGL No. 20-11 section g. A waiver of the EUC RES REA requirement is appropriate when the state determines that an individual has completed similar services within the last 3 months of such determination. These may include Completed participation in a state REA program while receiving regular unemployment benefits. This means the claimant must have completed participation in the following required REA activities 1 Unemployment Insurance UI eligibility assessment 2 orientation to services in the American Job Center formerly known as One- Stop Career Centers which includes provision of Labor Market Information and 3 development or review of an individual reemployment plan that includes work search activities and referral to RES See Section 6.C. of UIPL No. 10-12 . Completed participation in the state s Worker Profiling and Reemployment Services WPRS program while receiving regular unemployment benefits provided that these WPRS services included 1 orientation to the American Job Center services including the provision of labor market information 2 an individual skills assessment and 3 development of a reemployment or work search plan see UIPL No. 41-94 . If the claimant participated in some of these activities but not all the state must schedule the claimant for those activities services that the claimant has not yet received to meet the EUC RES REA requirement the state may report this as a completed RES REA . 3 Completed participation in the state s UC Eligibility Review Program ERP while receiving regular unemployment benefits. The ERP activities must have included 1 a UI eligibility review 2 information about employment services and an individual skills assessment and 3 development of a reemployment or work search plan see GAL No. 5-77 . If the claimant participated in some of these activities but not all the state must schedule the claimant for those activities services that the claimant has not yet received to meet the EUC REA requirement the state may report this as a completed RES REA . 7. Question What other types of services are considered similar services for the purpose of waiving EUC RES REA participation requirements Answer The Department interprets similar services to be any other services provided to the claimant through any other forum and in another context and or by other service providers within 3 months before the state makes the determination on the participation requirement and that included 1 an orientation to services available through the American Job Center 2 the provision of labor market and or career information 3 an individual skills assessment and 4 a UC eligibility review and or a review of the claimant s work search under the state s requirements. If the claimant participated in some of these activities but not all the state must schedule the claimant for those activities services that the claimant has not yet received to meet the EUC REA requirement the state may report this as a completed RES REA . Breaks in a Claim Series 8. Question If a claimant returns to work after receiving for example only three weeks of EUC First Tier benefits and stops filing EUC weekly claims but later is separated and begins filing again must the claimant be rescheduled for an EUC RES REA Answer Yes. A claimant who has a break in their EUC First or Second Tier claim series because s he returned to work or for any other reason must be scheduled for the EUC RES REA. The purpose of this requirement is to assist these claimants in finding permanent work since the claimant has again become unemployed s he is still in need of these RES REA services and the requirement still applies. Transition from EUC to UC 9. Question If an EUC claimant qualifies for and begins receiving regular UC benefits before being scheduled for the EUC RES REA is the claimant still required to participate in these RES REA services Answer No. The EUC RES REA requirement applies only to designated claimants receiving EUC. Claimants receiving regular UC are of course subject to the regular UC REA requirements if selected in states operating a UC REA program. B. In-person Requirement for the REA 1. Question Like other states our state has physical capacity limitations in a number of American Job Centers. To avoid backlogs may states be allowed some flexibility in conducting the EUC RES REA work search review by phone when for example capacity in the American Job Center has been exceeded 4 Answer The Department is sympathetic to legitimate administrative concerns of state workforce agencies implementing this requirement. However the clear intent of Section 2142 of the Act is to require EUC claimants to physically report in person to an American Job Center for the reemployment and eligibility assessment. If necessary states must acquire alternative locations or venues to provide REAs as prescribed by the Act. Under the Act the eligibility review related to the claimant s work search must be completed with the claimant physically present. A state may choose to require that additional activities be performed in person but may not absent extraordinary circumstances choose to complete the eligibility review remotely. 2. Question How many weeks of work search records must the state review during the claimant s in-person EUC REA work search review Answer At least one week of an individual s work search records activities must be reviewed during the in-person EUC REA. However claimants must be advised that they must maintain records of their required work search activities while they are filing continued claims for benefits and the y must provide such records upon request by the state agency. Note All individuals receiving EUC are potentially subject to random audits of their work search activities under new section 4001 b 4 of the EUC law. 3. Question Are states required to conduct a full review of the claimant s eligibility or only a review of the work search Answer States must review the claimant s eligibility with respect to the work search however in doing so any eligibility issues that may arise with respect to any other EUC eligibility requirements must be addressed and must be adjudicated. 4. Question If a state for justifiable cause excuses a claimant from participation in EUC RES REA activities may it also waive the EUC work search requirements and or employment service registration Answer No. The EUC law includes certain mandatory and optional EUC RES REA activities for which participation is excused when the state issues a waiver based on justifiable cause. However EUC claimants selected and later excused from participation in the EUC RES REAs remain subject to the broader requirements that apply to all EUC claimants. The EUC statute as amended requires that all EUC claimants with certain exceptions such as claimants in approved training and job attached claimants such as those participating in Short-Time Compensation programs whether or not they are participating in the EUC RES REA activities establish that they are actively seeking work. To meet this requirement each EUC claimant must Register for employment services as prescribed by the state agency Engage in an active search for work that is appropriate in light of the labor market and the individual s skills and capabilities and include an appropriate number of employer contacts as determined prescribed by the state Maintain a record of his her work search including employers contacted method of contact and date of contact and When requested provide such work search record to the state agency. 5 These work search activities are not discharged when the state waives the requirement for participation in the EUC RES REA pr ogram. Every EUC claimant must be advised of and meet these new EUC work search requirements to qualify for benefits. As previously mentioned claimants may also be subject to an audit of their work search activities if selected during the random audit. 5. Question If the state s work search requirements are the same as the EUC requirements does the state need to notify the claimants again of the requirements Answer Yes. It is prudent and responsible for the state to advise all EUC claimants of the statutory requirements they must meet including the work search requirements even if they are equivalent to a state s regular UC work search requirements. Note States were advised in UIPL 04-10 Change 9 to immediately begin notifying EUC claimants of the new EUC work search requirements. 6. Question Our state collects and maintains an electronic record of the work search activities which is collected when claimants file their claim and this information can be accessed in the American Job Centers during the REA work search activities review. Since the information is available on-line may this on-line information be used for the REA review rather than the claimants copies of their work search records Answer Yes. States that capture the claimant s work search activities on-line may use those records during the work search review which is conducted in-person with the claimant in the American Job Center. The state must however continue to advise claimants that they are required to maintain their own record s of their work search activities as required by the Act. 7. Question If a claimant reports to an American Job Center in one location and the review of the claimant s work search is conducted remotely by video conferencing by another agency staff person from another location would the in-person requirement be met Answer Yes. The in-person requirement for the work search review will be met if when the review is conducted by video conferencing providing the claimant has physically reported to an American Job Center to participate in the eligibility review related to the claimant s work search activities . 8. Question If a claimant is attending training under the Trade Adjustment Assistance TAA program while receiving EUC may states waive the REA participation requirement Answer Yes the state may waive the RES REA requirement if a claimant is attending TAA training see 20 CFR 617.18 b . C. Reemployment Services Provided Remotely 1. Question May states accept a claimant s attestation that s he has completed a given RES when such service is provided remotely or on-line Answer Yes. The state may accept a claimant s attestation that s he completed a given service. Such attestation or documentation of completion of the service must be a part of the claim record. Given the resource constraints states may elect to provide certain required reemployment services including skills assessments on-line. States that have 6 the capacity to track the on-line services accessed by participants should collect and store this information in their management information system. States that have on-line tools that provide certificates of completion should advise participants to print the certificate for their records to be provided to the state upon request. 2. Question Our state plans to use the Department s national tools e.g. MySkillsMyFuture MyNextMove or the Skills Profiler and or other on-line resources. However these resources do not provide certificates of completion. May these tools still be used to meet the RES REA requirement Answer Yes these tools may be used for the skills assessment and or for the LMI information. States using these national tools will need to establish procedures to document the claimant s participation in the required reemployment services using the appropriate part of these tools. For example claimants may be directed to the required online reemployment services before being scheduled to report to the American Job Center for the review of their work search activities and the y could be asked to attest to the completion of the required services at that time. The state s policies and procedures should describe how the self-attestation is obtained how participants are notified of the attestation requirement how issues are resolved when for example staff has doubts about whether an individual took an online course and how the state ensures that staff follows those policies and procedures. 3. Question May states allow claimants to use MySkillsMyFuture to meet the skills assessment requirement Answer Yes. MySkillsMyFuture which offers personalized career suggestions based on a person s interests and level of work experience may be used to meet this requirement . D. Eligibility Issues 1. Question Our state has an illness disability provision that provides for continuing eligibility for benefits if the individual becomes ill or disabled after they filed or reopened their claim for benefits. These individuals are not held ineligible under the able and available or actively seeking employment provisions as long as they have not been offered suitable work which they refused because of the illness or disability. May these individuals be excluded from the pool of individuals required to report for a REA Answer Yes. The state may choose to waive the participation requirement for individuals who under the state law fall under an illness disability exemption based on justifiable cause under section 4001 i 3 B of the EUC law as amended. 2. Question If a claimant receives a waiver for the EUC RES REA does this mean that the claimant would be excluded from the population for the random audit of work search activities Answer No. Selection to participate in EUC RES REA activities and selection for random audit are separate matters. All EUC claimants whether or not selected to participate in EUC RES REA activities are required to meet the new requirement under section 4001 h that they be actively seeking work. Section 4001 h also requires the state in any given week to audit on a random basis work search records for a certain number of EUC files to be determined by the Department. The statute requires that files 7 be selected on a random basis. If in the course of auditing the records for a given claim it turns out the state has exempted the claimant from the requirement to register with the employment service and the work search is waived because the claimant is a union member the state must verify the claimant s union status. 3. Question May states begin paying First Tier or Second Tier benefits before scheduling the EUC RES REA Answer Yes. States must begin paying benefits in a timely manner to individuals who meet the threshold eligibility requirements for these benefits. States were required to advise individuals of the new EUC work search requirements and prescribe the ways in which the claimant must fulfill them. States were also required to begin notifying these individuals by the third week in their EUC claim series that they must report for the required EUC RES REA at an American Job Center for an eligibility assessment and appropriate reemployment services. The eligibility review including the work search review is a core activity which is required by statute to be completed with the claimant physically present. A state may choose to require that additional activities be performed in person. The in-person EUC RES REA generally must be scheduled by the individual s sixth week in their EUC First Second tier claim series. E. Staffing Guidelines 1. Question Our state has hired retirees to help with the EUC RES REA workload and these employees are temporary grant employees paid by UC contingency funds. May the states use these temporary employees to conduct the EUC work search review Answer Yes provided any temporary employees performing inherently governmental work as explained in TEGL No. 20-11 Section 7 Staffing Guidelines are hired and covered under the state s merit system and the staff costs are charged to the EUC administrative funds. 2. Question Which agency or program staff has the responsibility for scheduling claimants for the EUC RES REA services that is UC staff or the Employment Service staff Answer The state must determine which program office staff has responsibility for scheduling claimants for EUC RES REA services. Regardless of which agency program has this responsibility and or receives the funding for these services states must ensure collaboration among the state s UC and workforce programs as well as Local Workforce Boards and American Job Centers. States are encouraged to consider development of a cross-program agreement or a Memorandum of Understanding to formalize the implementation strategy as appropriate. In determining which agencies will perform which functions please refer to TEGL No. 20-11 Section 7 Staffing Guidelines for the Department s guidance on which tasks must be performed by government employees. F. Administrative Funding 1. Question May the state UI agency provide a lump sum portion of its share of the 500 million American Recovery and Reinvestment Act ARRA Special Administration transfer to the state ES WIA agency to provide reemployment services to UI claimants including reemployment services for EUC claimants 8 Answer Yes. If a state has funds remaining from the 500 million ARRA distribution a lump sum transfer from one state agency to another for these purposes is permissible to conduct EUC RES REA activities. One of the purposes for which the funds were provided was for staff-assisted RES for UI claimants and state use of their shares of the 500 million for such purpose should be included in the states spending plans per TEGL 32-11. The Department continues to urge states to spend their allotments from this distribution as quickly as feasible and prudent consistent with the intent of the statute under which the funds were appropriated. 2. Question Will there be any special fiscal reporting required on how the state spends the share of funds it transfers to the State Employment Service ES or Workforce Investment Act of 1998 WIA agency to help implement these new EUC RES REA requirements Answer No. The state agency expenditures of the Special Distribution should be reflected on the appropriate Employment and Training Administration ETA required reports i.e. the ETA-8403 and ETA-2112 reports . 3. Question May states use funds from their share of the 500 million Special Distribution to pay for costs associated with providing the EUC RES REA services such as conference room fees printing costs etc. Answer The Recovery Act specified that states must use their share of the 500 million for expenses incurred on certain activities including staff-assisted reemployment services for unemployment compensation claimants. To the extent that conference room fees and printing or other costs are incurred in the course of administering these newly required EUC RES REA services the funds from the Special Distribution may be used to pay for those expenses. 4. Question May the state use funding provided to administer the EUC program to hire additional staff to administer the RES REA services in local offices Answer Yes. The state may use EUC administrative funding to hire additional staff to administer the RES REA program in local offices providing that such staff are merit staff. This staff may include state retirees hired through the state s merit staffing system. Please refer to the staffing guidelines in TEGL No. 20-11. 5. Question States have some offices that cannot handle the EUC RES REA volume and will need to offer services offsite. Is it permissible to use EUC administrative funds to rent a facility like an auditorium large classroom at a community college for EUC RES REA services Answer Yes. It is permissible to use EUC administrative funds to rent such facilities to the extent that the facilities are needed for the EUC RES REA activities. 6. Question Our state may remotely conduct i.e. via telephone or Internet an EUC RES REA for those individuals who would otherwise have to be waived due to the long distance that they would have to travel to get to an American Job Centers. These individuals can still benefit from these services even if conducted remotely rather than in person due to the commuting distance. Will our state be allowed to get the 85 for this EUC RES REA Answer Yes if the individual would qualify for a waiver because the individual resides in an area of the state where there are not services available within a reasonable 9 commuting distance the state may provide such services remotely and receive funding for these services. However this is allowed only when the individual s would have otherwise qualified for a waiver and only when the individual completes all the required services. The claim record must contain documentation of the commuting distance to the nearest American Job Center to substantiate this method of service delivery. 7. Question Subsequent to the passage of the Act some states began to incur implementation costs related to this RES REA requirement i.e. for planning and information technology IT programming in order to be prepared to schedule these activities timely. Are these implementation and IT costs allowable costs Answer Yes costs incurred subsequent to enactment of the Act and in the same fiscal year are allowable costs. 8. Question How are funds for the EUC RES REA distributed to the states Answer The ETA Grant Officer will assign a separate line on either the UC or the ES grants to provide obligational authority for RES REA administrative funds depending upon which agency has been designated to manage the funds. A separate sub-account for these funds will be set up in the Payment Management System for states to draw down the administrative funds. The Department has advanced to state agencies funding for the number of projected RES REAs times 85.00 through June 30 2012 and additional advances will made available as necessary. The final amount of obligational authority issued to each state will be reconciled with the total number of completed or substantially completed RES REAs reported on the ETA 9128u report. 9. Question For what period of time will states be able to obligate funds made available to conduct EUC RES REA Answer These funds are awarded to states to provide RES REA services to EUC claimants at specific points in their claims series so the expectation is that the funds would be expended as the workload materializes. RES REA services would not be provided after the expiration of the EUC program in early January 2013. States should not need to obligate funding for these purposes beyond that point except for the reconciliation of accounts. Funds allocated in FY 2013 would have to be obligated by states by September 30 2018 and those allocated in FY 2012 twelve months earlier. 10. Question States received the Notice of Obligation NOO for the funds related to the EUC RES REA dated April 1 2012. TEGL No. 20-11 dated March 16 2012 notified states that individuals who begin receiving EUC First Tier benefits or who transition from First Tier to Second Tier benefits on or after March 23 2012 must receive RES REA services. My state expended resources to comply with the March 23 rd date after receiving the TEGL. Since the NOO is dated April 1 are we prohibited from using any of the funds provided to pay expenses incurred for implementing and conducting EUC RES REA services before that date Answer No. States may use their distributions under the 85 appropriation to cover costs associated with EUC RES REA activities required by TEGL No. 20-11 even if those costs were incurred before the date when the funds became available to states. In addition the NOO states the funds are to be used consistent with instructions provided in TEGL No. 20-11. 10 G. Reporting Requirements 1. Question May states report EUC RES REA services that have been substantially completed for example the provision of labor market information the skills assessment and the in-person eligibility review related to the work search activities were completed however the orientation to One-Stop services was not completed because the claimant failed to participate in this one service and thus an appropriate denial was issued for failure to report as directed Answer Yes. States may report EUC RES REA services that have been substantially completed. The RES REA will be considered substantially completed when the services have been either completed and or the failure to complete one or more of the services has been addressed by the state such as through appropriate denials disqualifications. 2. Question If a claimant is scheduled for an EUC RES REA but is later determined ineligible for EUC should the RES REA still be reported Answer Yes. If the claimant participated in the EUC RES REA even though s he was later determined to be ineligible for EUC the state may report the EUC RES REA. Note Only those claimants receiving EUC benefits are required to participate in the RES REA however the Department recognizes that there may be times when a RES REA is completed around the same time that the claimant s eligibility status changes if that happens the state should report the EUC RES REA. 3. Question If an EUC claimant receives an EUC RES REA but is scheduled for an additional RES service later how are these services reported Answer The EUC RES REA is reported one time only. The additional services should be reported on the relevant lines of the ETA 9002 report when the required REA services have been completed. H. Training Services 1. Question May states provide training to EUC claimants as part of the optional services Answer Yes. To the extent that states have funding to provide needed training to an individual states are encouraged to provide such training as part of the optional services. However first states must ensure they are fully meeting their obligations to provide required EUC RES REA activities.