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19. How Does a Suspension Affect Eligibility?

ALERT:   IN LIGHT OF THE COVID-19 EMERGENCY, ASPECTS OF THE UI PROCESS HAVE BEEN MODIFIED.  VISIT https://www.masslegalservices.org/covid-19-and-ui FOR CURRENT INFORMATION.

When an employing unit suspends a claimant from work as discipline for breaking established rules and regulations, the claimant may be disqualified from receiving UI for the period of suspension, but in no case may this suspension period exceed 10 weeks. G.L. c. 151A, § 25(f); 430 CMR 4.04(4). The disqualification occurs only if the employer establishes that the claimant violated a rule or regulation that the employer published or established in its customary manner, the suspension was for a fixed period of time, and the employee has the right to return to the job at the end of the suspension period if work is available.

Public employees who are suspended following indictment are disqualified from receiving UI during the period of the suspension, even if it is for an indefinite period. See G.L. c. 151A, § 22; c. 30, § 59 (applies to officers and employees of the Commonwealth); G.L. c. 268A, § 25 (applies to county, municipal, and district officers).

However under G.L. c. 30, § 59 (the Perry Law), compensation is prohibited for state employees only if the indictment is for work-related misconduct. The Supreme Judicial Court has held that, with the exception of teachers and police officers, G.L. c. 30 § 59 excludes an employee’s off-duty contact. Brittle v. City of Boston, 439 Mass. 580, 594 (2003). BR-0029 0310 98 (6/19/19) (holding because a state employee’s indictment was for non-work related misconduct, the Perry Law does not prohibit her from collecting unemployment compensation while on indefinite suspension). See also AH c. 8, § 3.

Disciplinary vs. Investigative Suspension

A “disciplinary suspension” under § 25(f) is distinct from an “investigatory suspension,” which, if followed by termination, should be analyzed under G.L. c. 151A, § 25(e)(2) as discharge attributable to the employee’s actions. See BR-110769 (1/11/2011) (where claimant was placed on indefinite investigatory suspension and then terminated after the employer concluded that the claimant had engaged in the suspected misconduct, this suspension cannot be analyzed as a disciplinary suspension but as a § 25(e)(2) discharge that occurred at the date the employee was put on investigatory suspension pending discharge). As a result of the Board’s decision, DUA took the position that an indefinite suspension is considered to be a discharge as of the date that the suspension began. See UIPP, Indefinite Suspensions, (5/9/12). However, a subsequent decision of the Board caused DUA to reverse course. See BR-1843191 (9/11/14) (claimant who was placed on a disciplinary suspension could not be disqualified under G.L. c. 151A, § 25(f), because the suspension was indefinite; since the claimant remained on suspension at the time he filed an unemployment claim, his separation was properly analyzed under G.L. c. 151A, § 29 i.e., whether or not he was in total unemployment), regardless of the fact that he was subsequently discharged). Accordingly, DUA now finds that if a claimant is under an indefinite suspension,the claimant is eligible for UI. If the claimant is suspended for a workplace rule or regulation violation, the 10 week suspension can be imposed only if the suspension is for a fixed period of time and the claimant has the right to return to work as long as work is available. However, if the claimant is indefinitely suspended, adjudicated under §25(f) and later permanently separated, the entitlement to UI benefits must be investigated under §25(e) and the claim reopened for the week in which the claimant was formally separated. See UIPP # 2014.06, Revision to Policy for Adjudication of Indefinite Suspensions (9/26/14); AH c. 8, § 2.

Other Grounds for Suspensions

In addition to rules violations, DUA will inquire whether a claimant has been suspended due to conviction; drugs, or alcohol; indictment while in public office; loss of license; safety violation; accident or equipment damage; theft; misappropriation; falsification; unsatisfactory attendance, work performance, or qualifications, or behavioral issues.