In Wisconsin, getting disability strips federal boost to unemployment
A new form of unemployment assistance is being denied to Wisconsinites with disabilities — and Wisconsin is the only state in the nation denying those benefits to its disabled residents during the pandemic.
Because of a law passed by Republican lawmakers in 2013, people who have disabilities and receive payments provided through Social Security Disability Insurance are barred from receiving the new federally funded unemployment benefits for people who have lost work due to the virus outbreak.
The consequences could be severe. For Alan Ferguson, he’s at risk of running out of money to pay for medication to keep his suicidal thoughts at bay.
The Evers administration and U.S. Sen Tammy Baldwin are trying to change this rule during the pandemic, but so far have yet to hear back from the Trump administration.
Ferguson, 56, who lives outside Mount Horeb in Dane County, said he’s been receiving assistance for his disabilities since 2015 after an injury.
He relies on the payments “to make ends meet” but lost additional income for part-time electrical work once the pandemic spread to Wisconsin and business dropped.
That means Ferguson, a former police officer, may not be able to continue to afford $1,400 ketamine infusions he needs to alleviate suicidal thoughts he’s had for years as part of his diagnosis of clinical depression.
Due to the pandemic, the University of Wisconsin stopped performing infusions covered by insurance so now he pays for them out of pocket at a Milwaukee-based clinic.
“That was a lot of money to lose in one month . ... I’ve got an electric bill that I still owe on, and I’m looking at my electricity being shut off if I can’t come up with the money to pay it,” he said.
As an independent contractor, Ferguson doesn’t qualify for ordinary unemployment insurance. And now he’s being told he isn’t eligible for Pandemic Unemployment Assistance, either, which covers such contractors.
The new federal benefit was passed by Congress in a relief package known as the CARES Act. It provides up to 39 weeks of benefits to individuals who are not eligible for regular unemployment insurance, including “certain independent contractors,” according to the Wisconsin Department of Workforce Development.
In June, just Wisconsin and North Carolina could not provide the pandemic financial assistance to its residents with disabilities, according to Victor Forberger, supervising attorney for the University of Wisconsin’s Unemployment Compensation Appeals Clinic.
North Carolina’s governor ultimately made disability benefit recipients eligible for the pandemic financial assistance by executive order.
“Wisconsin claims it cannot waive any able and available requirements, even ones created by state law . ... In other words, North Carolina is doing something Wisconsin considers impossible,” Forberger wrote in a blog post about the issue.
Jacqueline Gibeau, 54, of Brooklyn is worried she’s in the same boat as Ferguson.
Gibeau, who has been disabled since 2013, lost a part-time job she worked at an Old Navy store for three months — costing her a third of her income.
Gibeau said that she applied first for regular unemployment benefits, got denied because of her disability benefits, and then applied for the federal pandemic assistance based on the guidance she received from the state DWD and how she understood the CARES Act.
She hasn’t been formally denied yet — but expects to be.
“Supposedly it’s on hold — whatever that means,” she said. “And I was only told that because I emailed everybody from my state representative all the way to the president of the United States.”
Gibeau said she presumed benefits included in the CARES Act would include her, “because why wouldn’t it include me?”
“But Wisconsin seems to be the only state that didn’t hold true to that,” she said.
Thousands of Wisconsinites seeking unemployment benefits have gone months without receiving benefits or a notification of whether they’ll receive them as the state’s outdated unemployment system struggles to keep up with the overwhelming number of applicants who lost work because of the pandemic.
As of July 7, the state says it’s received 3.96 million weekly claims since March 15 and has paid out over 2.9 million of them. More than 462,000 people have been denied; 3.4 million weekly claims have been “resolved” overall, which means they were either paid or denied.
DWD spokesman Ben Jedd said that “approximately five people were denied PUA benefits due to SSDI” before the agency put those applications on hold until state officials hear from U.S. Department of Labor officials about how to proceed.
On June 9, DWD Secretary Caleb Frostman wrote to federal Department of Labor Secretary Eugene Scalia asking him to clarify if disability benefit recipients who don’t get regular unemployment insurance could receive the pandemic unemployment assistance.
The DWD had asked regional labor officials earlier but was told that disability benefit recipients wouldn’t be eligible for the pandemic assistance.
But Frostman argued that the federal officials had misinterpreted Wisconsin’s law, because in Wisconsin, those getting disability are disqualified from getting regular unemployment and so should not be excluded from the pandemic benefits.
He added, “I am concerned that the interpretation could be viewed as denying benefits based on disability … or having a disparate impact on individuals with disabilities,” which could be a violation of the Americans with Disabilities Act.
In a letter on June 24 to Scalia, Baldwin, Rep. Gwen Moore, Rep. Ron Kind and Rep. Mark Pocan asked Scalia to answer Frostman’s letter. They also agreed that the Department of Labor’s interpretation could have violated the Americans with Disabilities Act.
Jedd, the DWD spokesperson, said the DWD “absolutely supports Senator Baldwin’s letter” and hopes to get a response from federal officials “very soon.”
The federal Department of Labor did not return a request for comment.
Gibeau said she is ineligible for food stamps and had to keep paying rent and other expenses even after losing her income for over two months.
“And it got to a point where I couldn’t afford my medication, so I started splitting (the medication) in half,” she said.
“But people from the outside have commented, ‘Why don’t you go get a job at Walmart? Why don’t you go get a job at an essential business?’ ” she said. “They don’t understand that people who are disabled (already) have a relationship with their employer” who allows them the accommodations they need to still perform their jobs.
Ferguson said he appealed his denial and was told by DWD it could take seven weeks before a date would be set for an appeal hearing.
In the meantime, Ferguson said the agency’s online unemployment system asks him not to file weekly claims until a decision is made in the case, but a letter in the mail told him to continue filing. He said that he hasn’t been able to clarify the discrepancy with agency officials.
Both Ferguson and Gibeau said they reached out to state and federal officials, without much response.
Philip Rocco, a professor of political science at Marquette University, said the federal labor agency’s interpretation of how the CARES Act applies to Wisconsinites with disabilities could violate the law.
“I do think there could be a viable (lawsuit)” about the federal labor officials’ “interpretation of the CARES Act, since it could in fact disproportionately lock people with disabilities out of (pandemic unemployment assistance) coverage,” Rocco said in an email to the Milwaukee Journal Sentinel.
He also agrees with Frostman, saying federal labor officials “potentially misinterpreted the relationship between state law” and the pandemic unemployment benefit program.
Ferguson said there could be dire consequences by the time it is sorted out.
“I don’t know how we’re supposed to pay (for disability treatments), or people who are behind on rent, and mortgage, and utilities … without having that supplemental income from working, it’s just killing people,” he said.