Waiver of the ABAWD work requirements

Geographic waivers of the ABAWD three-month cut-off

There are two types of ABAWD waivers: Geographic waivers sought by the state from USDA; and personal waivers decided on a case-by-case basis by the county workers. USDA’s Food and Nutrition Service (FNS) allows geographic waivers for areas with chronic unemployment and areas without enough jobs. [7 C.F.R. § 273.24(f)(1).] At the request of states, FNS may waive the 3/36-month time-limits and work requirements.

The current rule is if ABAWDs live in an area where:

  • The unemployment rate is over 10%; or
  • The state can document that there are not a sufficient number of jobs to provide employment for these individuals.

[7 C.F.R. § 273.24(f)(i); MPP § 63-410.33; ACL 18-97.]

FNS also allows states to apply for two-year waivers. [See FNS Memorandum to Regional Directors, 2-Year Approval of Waivers of the Work Requirements for ABAWDs under 7 C.F.R. § 273.24 (February 3, 2006).] To qualify for a two-year waiver, the affected area must meet at least one of the following criteria indicating that the area has and likely will continue to experience chronic high unemployment:

  • An unemployment rate greater than 10% for the two-year period immediately before the request;
  • Designation as a labor surplus area (LSA) by the U.S. Department of Labor’s Employment and Training Administration (DOLETA) for a minimum of two consecutive fiscal years (inclusive of the year of the request and the fiscal year before the request); or
  • An unemployment rate greater than 20% above the national average for a 36-month period, ending no earlier than three months before the state’s request for a two-year waiver. (This standard is more restrictive than the 24-month time frame used where the state is requesting a waiver for a 1-year geographic waiver.)

[Id.; ACL 18-97.]

Personal, case-by-case waivers

Under the current rule, states can waive an additional 12% of ABAWDs from these time limits and work rules, based on criteria developed by the state. (These are referred to in the rules as “15% exemptions”.) [MPP § 63-410.34; 7 C.F.R. § 273.24(g); ACL 21-48 (announcing change from allowing 15% of ABAWDs to be subject to discretionary exemption to 12%).] Individual ABAWD waivers — or so-called “discretionary exemptions” (previously called 15% exemptions) — allow all California counties to protect ABAWDs who face significant barriers to unemployment. In California, each county has a percent of households that they can waive. This percentage is based on the county’s ABAWD caseload. Caseworkers in county CalFresh offices use these waivers to extend benefits on a month-by-month basis for ABAWDs who do not meet the work requirements. [MPP § 63-410.34.] No financial penalty attaches to California or the counties for under- or over-utilizing the 15% exemption. [ACIN I-98-99.]

The 15% exemptions are only available to persons at risk of losing CalFresh benefits for not satisfying work requirements.  California has established equivalent exemptions for persons receiving California Food Assistance Program benefits.  [ACIN I-72-18.]  People serving a sanction are ineligible for a 15% exemption.  [Id.]

The ABAWD requirement is implemented by first assessing persons subject to the ABAWD requirement and screening for exemptions, second engaging ABAWDs to find additional work or participate in qualifying work activities, then third providing 15% exemption to maintain food assistance.  [Id.]

However, effective October 1, 2020, the number of discretionary waivers is reduced to 12%. [Agriculture Improvement Act of 2018 (2018 Farm Bill) § 4005(b)(3)(E).]  In addition, new federal rules set to become effective on October 1, 2020 limit the number of unused discretionary exemptions that a state can carry over to the next year to 12% of covered individuals.  [84 Fed. Reg 66782, 66803.]  States can use currently available discretionary waivers until September 30, 2020.  [ACL 20-18.]  On March 13, 2020, the federal district court for the District of Columbia entered a nationwide injunction blocking implementation of most of the new ABAWD rules, but denied a preliminary injunction regarding the new rules for carry-over of unused ABAWD exemptions..  [District of Columbia v. U.S. Department of Agriculture and Bread for the City v. U.S. Department of Agriculture, Civil Action No. 20-119 (BAH), Memorandum Opinion, March 13, 2020.]

California will attempt to use as many discretionary exemptions as possible before September 30, 2020.  For the period April 1, 2020 to May 31, 2020, discretionary exemptions will be allocated to counties to use for every CalFresh recipient who is ABAWD but does not meet work requirements.  [Id.]  For the period June 1, 2020 to September 30, 2020, the remaining discretionary exemptions will be divided among counties based on each county’s share of the statewide caseload of ABAWD’s subject to the time limit.  [Id.]  Counties will have flexibility in how to use this second allocation of discretionary exemptions for people who are ABAWD and not meeting the work requirement.  [Id.]

ABAWD waiver county requirements

Counties with an ABAWD time limit waiver must continue to report work registrant, ABAWD and Employment and Training date quarterly. Counties with a waiver of the ABAWD time limit must continue to sanction work registrants who voluntarily quit a job of more than 30 hours per week or that provides weekly earnings greater than federal minimum wage times 30.

Moving from an ABAWD county to a waiver county

Individuals who are discontinued for failure to meet the ABAWD work requirements in the counties that no longer have a waiver and who subsequently reapply for CalFresh in a county that has a waiver can be eligible for CalFresh. [ACL 21-67; ACL 18-97 p.3.]