(1) Proposed changes to 16 VAC 5-60-10(A), 16 VAC 5-60-10(C), and 16 VAC 5-70-10(E) provide that initial, continued, and/or weekly claims may be filed by telephone, Internet, or by other means at the discretion of the commission. 

As an initial matter, the multiple references to “or” should be changed to “and” – such that multiple means of claims filing plainly and unambiguously remain available to claimants. 

This is particularly important now in view of the challenges that many people continue to face in attempting to use the Claimant Self-Service System (CSSS).  Many bona fide claimants remain locked out of that system, such that access by telephone and other means remains critically important.

Moreover, over the longer term, and even after CSSS is made accessible widely to claimants, it remains important to keep in mind that many claimants lack technology or training, face other barriers in making initial and continued/weekly benefit claims by Internet (and even by telephone), or need additional assistance. 

The VEC establishing the Office of the Unemployment Compensation Ombudsman, and creating a team of 14 customer advocates located at Virginia Career Works Centers throughout Virginia (as outlined in the VEC’s November 1, 2022 report to the General Assembly), is both a welcome development and an acknowledgment of this need.

Moreover, there is indication that moving away from in-person filing options will impose disproportionate harms on certain populations.  Studies, reflecting on UI modernization, have noted that Black and Latinx adults, and disabled adults, have distinctly lower rates of access to technology and Internet connectivity, and lower rates of digital literacy, than white and non-disabled adults.  https://www.newamerica.org/pit/reports/unpacking-inequities-unemployment-insurance/the-digital-divide-and-ui-modernization-states-moves-to-online-applications-worsen-accessibility (September 17, 2020).  Additionally, roughly 23% of U.S. adults (or 48 million people) struggle to read.  https://www.propublica.org/article/literacy-adult-education-united-states (December 14, 2022).  Online and phone help from the VEC is unlikely to be of use to people who cannot read or write sufficiently to complete applications or appeals, or follow written directions to (for example) provide documents – whether on paper or online.  Lastly, the inability to file and maintain claims in person at local offices may also adversely impact persons with disabilities, depending on the nature of the impairment, which could run afoul of the reasonable accommodation mandate of the ADA and related laws. 

To that end, and in addition to other modes of access (e.g. telephone, Internet), it is important that people be able to file initial and continued/weekly claims at workforce, adjudication, or one-stop centers.  Proposed changes (e.g. to 16 VAC 5-60-10) seemingly eliminating this option should be rescinded.  This is a matter of equitable access for underserved Virginians. 

Moreover, eliminating this option also runs afoul of DOL requirements, as set forth in UIPL 11-18, Change 1, at Attachment I-5.  The document notes that one prerequisite for utilizing UI modernization is that a state must ensure that:

“Alternative Access Options are made available in compliance with ETA guidance, including alternative access options for individuals with barriers to filing by phone or online, such as those with Limited English Proficiency, disabilities, literacy issues (including computer literacy), and computer access issues;”

https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2020/UIPL_11-18_Change_1.pdf (July 16, 2020)

(2) Proposed changes to 16 VAC 5-60-10(E) shorten the so-called “28-day rule” to 21 days.

The purported justification for this (as the agency background document summarizes) is that “to claim benefit rights with respect to a given week, a claimant is required to file the first continued claims form within 28 days of the day the initial claim was filed.  The first claim must be filed within 21 days of the day the initial application was filed.  This change is necessary to align the regulations with USDOL performance requirements but also reflects the actual practice of claimants.”

However, even if the explanation provided is accurate (and it is not clear that it is), the proposed changes have much broader effect than just regarding a first continued claim following the initial claim for benefits.  The proposed changes also block a claimant (in most circumstances) from receiving otherwise-payable weekly benefits, if a subsequent continued claim is filed more than 21 days after the week ending date of the last week claimed. 

Claimants may exceed that time period for any number of reasons, and reducing the filing period from 28 days to 21 days makes the system that much more unforgiving for claimants.

Lastly, and relatedly, 16 VAC 5-60-10(E) retains the problematic requirement that “an additional or reopened claim must be filed in order to initiate any further claim for benefits.”  In practice, as implemented by the VEC, this requirement has meant that a claimant cannot merely file one or more new weekly claims – as to benefit weeks that have not already run afoul of the 28-day deadline – but that a claimant additionally needs to manage to obtain reopening of their claim (e.g. by successfully contacting a VEC representative who is empowered to effectuate that reopening).  This language should be changed, such that a claimant who has exceeded the 28-day rule as to certain benefit weeks is not automatically blocked from filing weekly claims as to subsequent claim weeks, or required to reopen (as an additional step) prior to being able to do so.  This additional step of reopening is seemingly gratuitously, and (while confusing as a general matter) is also especially problematic during time periods when (as in large portions of the last several years) it was very difficult for claimants to promptly reach VEC representatives.