Guide for Trade (TAA and TRA) COVID-19-Q & A

RESPONSE ANSWER #1
The State Workforce Agency should request an explanation as to why the individual cannot participate in online classes. If it is due to a lack of supplies (such as a computer), then that could be covered by TAA training funds. If the school is not offering online classes, and is therefore on a break, then the Extended Benefits work test does not apply in this case*.

*If a participant enrolled in a training program is unable to continue training for more than 30 days due to the training institution has otherwise ceasing normal operations (in this case because of coronavirus mitigation strategies), this event creates an “unscheduled” break in training, and is, therefore, not beholden to the scheduled break requirements. Thus, Basic TRA may be payable if the participant previously met the enrollment deadlines and other eligibility requirements.  As this is an event that is “beyond the control of the individual,” there is a justifiable cause for the interruption of training and/or failure to begin as the case may be. Note that, presumably, the individual would be subject to work search requirements at this point.
Those on Additional TRA or Completion TRA are required to be in school though.

RESPONSE ANSWER #2
The individual may return or resume his or her approved TAA training plan. Amending or modifying that training plan is best addressed on a case-by-case basis. No individual shall be entitled to more than one training plan under a single certification, in accordance with 20 CFR 617.22(f)(2).

... Workforce Agency continue to pay benefits?

RESPONSE ANSWER #3
All Trade Readjustment Allowances (TRA) require the individual to meet the Extended Benefits (EB) work test unless the individual is participating in TAA training. The EB work test provisions within State law govern whether this individual may be eligible. Please refer to 20 CFR 615.8(d), (e), (f), (g). 12

RESPONSE ANSWER #4
Without participation in TAA training, only basic TRA payments are allowed. If there is a cessation in TAA training, the EB work test does not apply, but nothing prevents the individual from continuing to seek employment. Additional and Completion TRA are not payable without participation in TAA training. Accordingly, conducting the EB work test is not required but nothing prevents the individual from continuing to seek employment.

RESPONSE ANSWER #5
Benefits are payable if the individual is eligible. Additional TRA is payable for a maximum of 65 weeks after exhaustion of Basic TRA while the individual is in approved TAA training. Additional TRA is payable during the consecutive calendar weeks that occur in the 78-week period that begins immediately following the last week of entitlement to Basic TRA, the first week of approved TAA training if the training begins after the last week of entitlement to Basic TRA, or the first week in which TAA training is approved, if such training already has commenced (although Additional TRA or training costs may not be paid for any week before the week in which the TAA training was approved).

RESPONSE ANSWER #6
Under Sec. 236(g)(2) of the Trade Act of 1974, as amended, individuals cannot receive TRA for part-time training.

RESPONSE ANSWER #7
If a training institution requires that students take courses online due to COVID-19 and the individual does not have the equipment needed to continue his or her classes, then a computer is a requirement, and that cost should be covered accordingly. As ever, steps should be taken to set parameters around the reasonable cost of purchasing the computer.

Trade Readjustment Assistance (TRA) until the participant return to school?

RESPONSE ANSWER #8

The COVID-19 impact created an “unscheduled” break in training. Thus, Basic TRA may be payable if the adversely affected worker previously met the enrollment deadlines and other eligibility requirements. As this is an event that is “beyond the control of the individual,” there is a justifiable cause for the cessation of training or failure to begin. This is discussed in TEGL 05-15, Change 1, Attachment A, Section C 2.2. Please note, while Basic TRA may be payable to the worker, Additional or Completion TRA would not be, as they require participation in training. Requirements for Additional or Completion TRA can be found in TEGL 05-15, Change 1, Attachment A.

RESPONSE ANSWER #9

TEGL 05-15, Change 1, Attachment A, Section D.4 (Length of Training) provides a maximum amount of 130 weeks of TAA training for 2015 Program participants and any training can be modified for the trade-affected worker to accommodate the worker’s completion of TAA training. (This also applies to 2002 and 2011 Program participants in accordance with the Operating Instructions for these respective programs. 2009 Program participants have a maximum length of training of 156 weeks, in accordance with the 2009 Program Operating Instructions, and that training can also be modified.) The participant’s training plan should be modified/amended to reflect a change in the potential completion date of the TAA training, specifically during the COVID-19 crisis. Accordingly, the TAA training weeks of actual training may not exceed 130 weeks even though the duration of such training from beginning to completion may be longer than 130 weeks (count weeks the worker is actually in training; could be non-consecutive).

RESPONSE ANSWER #10

Yes. If the state has waived the work search requirements consistent with DOL guidance, it must extend such waiver to the work search requirements that apply to the Extended Benefits (EB) program. This will then apply to TRA, which requires that the individual meet the EB work test. Extending the EB work search flexibilities maintains consistency with state law because the EB provisions are part of state law. Accordingly, the extension is unrelated to the state triggering “on” for EB.

that an individual is making satisfactory progress and is on track to complete the TAA training on time?

RESPONSE ANSWER #11

These determinations are based on state policy; a state has the flexibility to determine how to satisfy the requirements itemized in 20 CFR 617.19. The regulation at 20 CFR 617.19 does not dictate to states how it will determine if an individual is “actually” participating in TAA training; it only requires that the state make a determination that the individual was participating in TAA training to pay TRA. During COVID-19, it might be more practical to waive this state requirement—if training vendors are non-responsive to the state’s request for information on an individual’s participation in training—and use a participant’s self-attestation that they are participating in training.

• States also have the flexibility to determine how to satisfy the requirements itemized in TEGL 05-15, Change 1, Attachment A, Section C.5.1. The guidance states that the state may request that the training vendor provide documentation that the individual is making satisfactory progress while in TAA training and that the case manager may attest that the worker is making satisfactory progress after speaking to the participant and the training vendor. Satisfactory progress throughout training is necessary for eligibility for Completion TRA, in the form of training benchmarks. Basic and Additional TRA do not require satisfactory progress – just “participation in TAA Training.”
• While it is good practice to contact the training provider and the participant, it is not a requirement in TAARA 2015. There is a requirement to document that the individual is making satisfactory progress while in TAA training. There is no requirement that stipulates that the training vendor must be contacted to determine if the participant is making satisfactory progress while in training. Therefore, during COVID-19, it might be practical to waive the state requirement in instances where the training vendors are non-responsive to the state’s request for information on the participant’s satisfactory progress while in TAA training.

RESPONSE ANSWER #12

TAA funds that are set to expire on September 30, 2020, may be used to serve trade-affected workers only. Section 236(a)(2)(A) of the Trade Act, as amended, limits funding to carry out its Sections 235, 236, 237, and 238. All these sections refer to workers certified under a petition for trade adjustment assistance and cannot be used to serve regular dislocated workers under WIOA.

RESPONSE ANSWER #13

TAA funds may only be used for layoff aversion services if the workers involved are covered under a certified petition, or for purposes of assistance in filing a petition for TAA. Adversely affected incumbent workers (AAIWs), who are members of a certified worker group threatened with separation, are eligible for training and employment and case management services while still employed. Section 236(a)(2)(A) of the Trade Act, as amended, limits funding to carry out its Sections 235, 236, 237, and 238. All these sections refer to workers certified under a petition for trade adjustment assistance, and cannot be used to serve regular dislocated workers under WIOA. If Rapid Response activities serve workers who are covered by a TAA certification, then Trade funds can be used for such Rapid Response services.

RESPONSE ANSWER #14

To determine that the worker has “substantially met the performance benchmarks established in the approved training plan,” TEGL No. 05-15, Change 1, Attachment A, Section C.5.1 (Training Benchmarks to meet Completion TRA Eligibility Requirements) explains that states must evaluate satisfactory progress against the two benchmarks at intervals of no more than 60 days, beginning with the start of the training plan. For this review, states may request the training vendor to provide documentation of the worker’s satisfactory progress. The case manager may attest to the worker’s progress after consultation with the vendor and the worker. The state may request that the worker provide documentation of the worker’s satisfactory progress toward meeting the training benchmarks from the vendor, such as through instructor attestations.

• To address the question, the mechanism for such collection is flexible and not limited to hard copy signature only. A case manager may document telephone conversations, save emails into the case file, or use other similar collection mechanisms. If state policy requires that a signature be obtained, it would be helpful to determine if an electronic signature will meet state policy or if state policy could be met in some other way.

state workforce agency continue to pay RTAA if the employer states the participant is working a full-time job but the RTAA recipient’s hours are temporarily reduced?

RESPONSE ANSWER #15

RTAA payment is subject to the leave and pay policies of the employer. If the RTAA recipient is employed full time or employed part-time and participating in TAA approved training, states must still make RTAA payments. Time off provided by the employer for COVID-19 related issues would be treated no differently than a paid holiday. However, if the RTAA recipient’s hours have been reduced, payments must be adjusted based on the hours worked/paid. If the RTAA recipient becomes employed only part-time, they must also be enrolled in TAA approved training to remain eligible for RTAA.

RESPONSE ANSWER #16

States are still required to continue providing employment and case management services and documenting the provision of these services. However, states have the flexibility to provide these services in a way that is consistent with efforts to slow the spread of COVID-19. Under TAA, like other programs, employment and case management services can be provided via phone or internet; for example, some states have used live broadcasting on social media platforms, videos, etc. States can also maintain electronic documentation, for TAA and all programs. States must continue to serve workers to the maximum extent possible, as petition certifications are ongoing.

Trade Readjustment Allowances (TRA) payable?

RESPONSE ANSWER #17

Additional TRA may be payable under these circumstances if the individual meets the eligibility requirements. If the training provider indicates that it will be back up and running within the 30-day period then the unscheduled break becomes a scheduled break and Additional TRA may be payable. This meets the requirement at 20 CFR 617.15(d)(1)(ii) that the break is provided for in the published schedule or the previously established schedule of training issued by the training provider or is indicated in the participant’s approved training plan. The other two components of 20 CFR 617.15(d)(1)(i) and (iii), which require the participant to be participating in training immediately before the beginning of the break and resuming participation in the training immediately after the break, would also have to be met and monitored accordingly to ensure that Additional TRA is payable. The state needs to emphasize that the continuation of the training via the new delivery system (i.e., online learning) is optimal and permits the participant to achieve training completion as scheduled, in accordance with TEGL No. 09-05 (Approval of Distance Learning Under the Trade Adjustment Assistance (TAA) Program).

Completion TRA is not payable because, as provided in TEGL No. 05-15, Change 1 Attachment A, Section C.6., “No payment for breaks in training are allowed, and the participant can only be paid Completion TRA for each week of full-time training, and then only if all five of the Completion TRA eligibility criteria described in Section C.5 of these Operating Instructions are met.”

RESPONSE ANSWER #18

If a school is transitioning to online instruction, a laptop and an internet connection would be required for all students and would, therefore, qualify as an allowable expense. When considering the implementation of internet service, the state will need to explore the service options available and select the one that meets the minimum bandwidth recommended by the school to access the training content.

RESPONSE ANSWER #19

Yes, COVID-19 closures can be considered in determining, on an individual basis, whether to apply equitable tolling for a deadline or whether there is good cause for waiving the time limitations for an application for Trade Readjustment Assistance (TRA) or enrollment in training. Equitable tolling is addressed in Training and Employment Guidance Letter (TEGL) 08-11, Availability of Equitable Tolling of Deadlines for Workers Covered Under Trade Adjustment Assistance (TAA) Certifications. Federal good cause and justifiable cause is addressed in TEGL 5-15, Change 1, see Attachment A, Sections C. 2. 1 and 2. The individual determination to apply Federal good cause, justifiable cause, or equitable tolling lies with the state. Factors to be considered in applying Federal good cause include whether there is a compelling reason or circumstance that would prevent a reasonable person from meeting a deadline for filing an application for TRA or enrolling in training. For example, closures of American Job Centers due to COVID-19 may be a compelling reason preventing a reasonable person from filing an application for TRA or enrolling in training.

State Staffing Flexibility, provides an order of payments. Are states required to transition all Trade Readjustment Assistance-eligible individuals into Pandemic Unemployment Assistance (PUA)?

RESPONSE ANSWER #20

No. Under section 2102 of the CARES Act, before individuals may receive PUA, they must not be eligible for—or must have exhausted—entitlement to regular compensation, additional compensation, and extended compensation, as well as Pandemic Extended Unemployment Compensation under section 2107 of the CARES Act. They must also have exhausted or been ineligible for Trade Readjustment Assistance (TRA) benefits. Thus, an individual may not receive PUA benefits where the individual is eligible for TRA benefits, and states may not transition such individuals to the PUA program.

RESPONSE ANSWER #21

Yes. An individual with a remaining TRA entitlement or remaining weeks of benefits may be ineligible to receive such benefits because TRA requires “actual” participation in TAA training, specifically Additional and Completion TRA. If TAA training is suspended for any COVID-19 related conditions, the individual may meet the definition of a “covered individual” under Section 2102(a)(3) of the CARES Act if he or she is not eligible to receive TRA benefits. In that case, the individual may be eligible for PUA.

RESPONSE ANSWER #22

If an individual becomes entitled to TRA after beginning receipt of PUA, such individual is no longer a “covered individual” under Section 2102 of CARES Act, and would thus not be eligible for PUA, because the individual has not exhausted regular compensation or extended benefits under state or Federal law or Pandemic Emergency Unemployment Compensation under Section 2107. TRA is regular compensation under Federal law. Accordingly, PUA benefits would no longer be available, and the individual may resume receipt of TRA.

State Staffing Flexibility, implies that all Trade Readjustment Assistance (TRA) eligibility must follow exhaustion of Pandemic Unemployment Assistance (PUA). Does this mean that PUA eligibility reduces TRA maximum entitlement as provided at 20 CFR 617.14?

RESPONSE ANSWER #23

No. PUA eligibility does not reduce the TRA maximum entitlement provided by 20 CFR 617.14.

The Trade Act, as amended, and the regulatory citation at 20 CFR 617.14 require that the maximum TRA payable be reduced by the amount of UI available to the individual, including:

• Regular compensation;
• Extended compensation; and
• Federal supplemental compensation (including Pandemic Emergency Unemployment Compensation in the first UI benefit period only.

PUA eligibility is like Disaster Unemployment Assistance (DUA), as will be explained later, and is not included in the applicable reductions to TRA. While the regulations define UI entitlement to include additional compensation payable under state law, it does not apply since the 2002 amendments to the Act became effective. Any applicable reductions to the maximum TRA entitlement are applicable to Basic TRA only.

Additional and/or Completion TRA are payable for a specific number of weeks to assist the individual complete TAA training. Any UI entitlement available to the individual during the period in which Additional and/or Completion TRA are payable only suspend the TRA eligibility. It does not reduce the maximum number of weeks payable for Additional and/or Completion TRA. There may be a reduction in the weekly amount payable as a result of a pension or other disqualifying income under state law.

PUA eligibility, similar to DUA eligibility, as provided at 20 CFR 625.4(i) requires that the individual not be eligible for “compensation” as defined at 20 CFR 625.2(d). “Compensation” under the DUA regulations, which also govern PUA, includes any unemployment compensation as defined in section 85(b) of the Internal Revenue Code of 1986 as well as regular compensation, additional compensation, extended compensation, federal supplementary compensation, and disability payments. It further includes Railroad Unemployment Insurance benefits and TRA. This establishes DUA and PUA as the payment of last resort such that there is an extremely limited opportunity for DUA and PUA to be paid before TRA.

An individual receiving Basic TRA whose TAA training is interrupted for a COVID-19 related reason may continue receiving Basic TRA as provided at 20 CFR 617.18(b)(2) if the cessation in such training is for justifiable cause. An individual whose TAA approved training is interrupted for a COVID-19 related reason cannot receive Additional/Completion TRA because these benefits require “actual” participation in TAA training. The latter individual may be eligible for PUA benefits, but, as explained above, PUA eligibility has no effect on TRA.

RESPONSE ANSWER #1

An individual must exhaust unemployment insurance benefits before payment of TRA (section 231(a)(3) of the Trade Act), which includes regular compensation, extended compensation, and federal supplemental compensation (section 247(11) of the Trade Act). This means that an individual must exhaust regular UC (except additional compensation), as well as any PEUC or EB that he or she may be eligible for before collecting TRA.

Section 4.b.i of UIPL No. 14-20 states that “[i]f the individual meets the qualifications to receive [TRA], such benefits will be payable after the programs listed above [including regular UC, PEUC, EB, and PUA].” However, eligibility for DUA (and accordingly PUA) requires that the individual NOT be eligible for “compensation” at 20 C.F.R. 625.4(i). The definition of “compensation” at 20 C.F.R. 625.2(d) includes TRA.

Therefore, to correct what was stated in UIPL No. 14-20, PUA is payable only if the individual is not eligible for or has exhausted TRA (basic, additional, or completion).

Trade Readjustment Allowances (TRA)

For additional information on Trade Readjustment Allowances (TRA) or Trade Adjustment Assistance (TAA) programs during this time, refer to the Frequently Asked Questions (FAQs) on the “Coronavirus (COVID-19) Resources” page at https://www.workforcegps.org/.

To qualify for TRA, an individual must have been entitled to regular UC (or would have been entitled to it if the individual had applied) for a week within the benefit period after the first qualifying separation and must have exhausted all rights to any regular UC benefits (section 231(a)(3) of the Trade Act of 1974 (Trade Act)). This regular UC claim filed or in effect (which includes an existing claim) after the first qualifying separation establishes the first benefit period and is often referred to as the “parent claim” for the individual’s TRA claim.

RESPONSE ANSWER #2

Yes. Receiving TRA and regular UC does not reduce the amount of PEUC available. Provided the regular UC claim has a benefit year end date on or after July 1, 2019, PEUC is payable to the individual based on the regular UC claim if all other eligibility requirements are met. Reference Questions B.5. and 6. from Attachment I of UIPL No. 17-20, Change 1, for additional information on the correct benefit year to use for establishing PEUC entitlement. I-6

RESPONSE ANSWER #3

It depends. An individual may receive basic TRA with a waiver of the TAA training if the state determines it is not feasible or appropriate for the worker to be in the training. If the individual is eligible to receive basic TRA, then the individual would not be eligible for PUA.

Additional and completion TRA require actual participation in TAA training. If an individual is receiving additional or completion TRA and is no longer participating in training, the individual will no longer be eligible for TRA and may be eligible for PUA. However, not being able to participate in TAA training because the school closed in response to the spread of COVID-19 does not make the individual a covered individual under PUA. The individual must be unemployed, partially unemployed, or unable or unavailable to work because of a listed COVID-19 related reason in Section 2102(a)(3)(A)(ii)(I) of CARES Act.

Coordination of Benefit Programs with TRA – Subsequent UC Eligibility

Section 232(d) of the Trade Act provides that when an individual collecting TRA establishes a subsequent UC eligibility and is eligible to receive UC, the individual has the option of choosing to receive UC or remain on TRA.
Questions 4-6 address this particular situation.

RESPONSE ANSWER #4

If, after exhausting TRA, the individual remains unemployed, the individual may qualify for a new regular UC claim. If the individual is no longer eligible for a regular UC claim and is unemployed, partially unemployed, or unable or unavailable to work for a listed COVID-19 related reason under Section 2102(a)(3)(A)(ii)(I) of the CARES Act, the individual may be eligible for PUA.

RESPONSE ANSWER #5

If the individual is collecting PEUC at the time he or she becomes eligible for the new UC claim, the individual would no longer qualify for the PEUC claim. At this point the individual can either establish the new UC claim and collect on that claim, or establish the new UC claim and then switch back to TRA on the parent claim to collect the remaining TRA benefits. I-7

RESPONSE ANSWER #6

If, after exhausting the new regular UC claim, the individual remains unemployed, the individual must exhaust all entitlement to PEUC and EB based on this new regular UC claim before returning to the original TRA claim.

benefit period as the basic TRA claim or to all PEUC claims?

RESPONSE ANSWER #7
Yes. Weeks of PEUC are deducted from basic TRA entitlement. UI entitlement includes regular UC, PEUC, and EB. As such, the weeks of PEUC entitlement with respect to the “first” benefit period reduce the maximum basic TRA entitlement.

RESPONSE ANSWER #8

No. Section 2102(c)(2) of the CARES Act provides that PUA is payable for 39 weeks including any weeks for which the individual received regular compensation or extended benefits. Because section 2102 of the CARES Act defers to DUA regulations for the definition of “regular compensation” and TRA is not included in this reference (20 C.F.R. 625.2(d)(1)), weeks of basic TRA are not deducted from PUA entitlement.

RESPONSE ANSWER #9

The maximum benefit amount (MBA) for basic TRA is 52 times the TRA WBA, minus the total sum of UI entitlement (section 233(a) of the Trade Act). As described earlier, UI entitlement includes regular UC, PEUC, and EB. The 26 weeks of regular UC plus the 22 weeks of basic TRA plus the 13 weeks of PEUC exceed the maximum amount of TRA payable. As such, the individual would have no remaining basic TRA entitlement for this benefit period.

Reference TEGL No. 05-15, Change 1 for information about potential eligibility for additional and completion TRA.