EMPLOYMENT SECURITY DEPARTMENT

[Filed September 18, 2020, 4:00 p.m., effective September 18, 2020, 4:00 p.m.]

Effective Date of Rule: Immediately upon filing.

Purpose: To exempt Pandemic Emergency Unemployment Compensation (PEUC), established by Sec. 2107 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Public Law No. 116-136, from the waiver provisions of WAC 192-240-070(3).

Citation of Rules Affected by this Order: Amending WAC 192-240-070.

Other Authority: Public Law No. 116-136, Sec. 2107; Unemployment Insurance Program Letter No. 17-20, Change 1 (May 13, 2020).

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: On March 27, 2020, the employment security department (ESD) signed an agreement with the United States Department of Labor (USDOL) to administer the PEUC program. The PEUC program provides an extra thirteen weeks of federally funded unemployment benefits to unemployed individuals who have exhausted their unemployment claim. As business activity remains restricted in order to prevent the spread of COVID-19, these PEUC benefits provide a vital benefit to individuals who remain unemployed for an extended period of time. In order to continue to provide these benefits, ESD must conform and comply with guidance issued by USDOL on how to administer the program.

Under guidance issued by USDOL in Unemployment Insurance Program Letter No. 17-20, Change 1 (May 13, 2020), anytime a state is deciding whether to waive an overpayment of PEUC benefits, "states must determine waiver requirements on an individual basis and cannot apply 'blanket' waivers to a group of individuals." WAC 192-240-070(3) states that when a claimant is being paid federal emergency unemployment compensation, and it is later discovered that the claimant was actually eligible for a regular unemployment claim at a lower weekly benefit amount, the difference between the amounts paid in federal emergency unemployment compensation and the weekly benefit amount on the new regular unemployment claim "will be waived."

As WAC 192-240-070(3) allows for a blanket, rather than an individualized, waiver of PEUC overpayments, it is necessary to amend the rule to exempt PEUC overpayments in order to remain in compliance with federal guidance. Otherwise, if the rule is not changed, ESD risks losing the agreement that allows it to provide the PEUC benefits so many Washingtonians rely on.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 1, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 1, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: September 18, 2020.

AMENDATORY SECTION(Amending WSR 09-24-011, filed 11/20/09, effective 12/21/09)

WAC 192-240-070What happens if I am paid emergency or extended benefits when I am eligible for a new unemployment claim?

If you are paid emergency unemployment compensation, state extended benefits, or any similar state or federal extension, and it is later discovered that you were eligible for a regular unemployment claim during all or part of the period in which you received such benefits, the regular unemployment claim takes priority. The balance on your new unemployment claim will be adjusted for any week(s) at issue, meaning those weeks in which you should have received regular unemployment benefits, subject to the following:

(1) Except as provided in subsection (4) of this section, you may not be paid twice for the same week

(2) If your new weekly benefit amount is equal to the amount you were paid for the weeks at issue, the amount you were paid in emergency unemployment compensation or extended benefits will be deducted from the maximum benefits payable on your new claim.

Example: Your previous weekly benefit amount was five hundred dollars. You received emergency unemployment compensation for eight weeks at this amount when it was discovered you were eligible for a new claim in the amount of five hundred dollars. The five hundred dollars paid for eight weeks will be deducted from the maximum benefits payable on your new claim.

(3) If your new weekly benefit amount is lower than the amount you were paid for the weeks at issue, the amount you were paid in emergency unemployment compensation or extended benefits that is equivalent to the weekly benefit amount on your new claim will be deducted from the maximum benefits payable on your new claim. Except for pandemic emergency unemployment compensation established under Sec. 2107 of Public Law No. 116-136, the difference between the amounts paid in emergency unemployment compensation or extended benefits for the week(s) at issue and the weekly benefit amount on your new claim will be waived as provided in RCW 50.20.190.

Example: Your previous weekly benefit amount was five hundred dollars. You received emergency unemployment compensation for eight weeks at this amount when it was discovered you were eligible for a new claim in the amount of three hundred-fifty dollars. The three hundred-fifty dollars for eight weeks will be deducted from the maximum benefits payable on your new claim. The one hundred-fifty dollar difference between your previous weekly benefit amount and your new weekly benefit amount will be waived.

(4) If your new weekly benefit amount is higher than the amount you were paid for the week(s) at issue, the amount you were paid in emergency unemployment compensation or extended benefits will be supplemented so that you receive your new weekly benefit amount for the weeks at issue and the total deducted from the maximum benefits payable on your new claim.

For example: Your previous weekly benefit amount was three hundred-fifty dollars. You received emergency unemployment compensation for eight weeks at this amount when it was discovered you were eligible for a new claim in the amount of five hundred dollars. You will be paid an additional one hundred-fifty dollars for each of the eight weeks at issue and the total deducted from the maximum benefits payable on your new claim.