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9. Who Does DUA Consider to Be Totally or Partially Unemployed?

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.

A claimant must be in total or partial unemployment in order to be eligible for benefits. G.L. c.151A, § 29(b)Claimants will be eligible for benefits in any week in which they are totally or partially unemployed so long as they are otherwise eligible under G.L. c. 151A. BR-0027 3826 76 (5/20/19).

A person is in total unemployment in any week in which they perform no wage-earning services, and for which they receive no pay or other remuneration. G.L. c. 151A, § 1(r)(2). Examples of remuneration include salaries, bonuses, commissions, reasonable cash value of room and board, other in-kind payments. (For a full description, see G.L. c. 151A, § 1(r)(3)). Examples of payments that are not considered to be “disqualifying remuneration” include: severance payments where there has been a release of all claims, payments for unused vacation or sick time, or lump-sum payments made in connection with certain plant closings.

A person is in partial unemployment in any week in which the individual is working less than full-time and has earned less than the weekly UI she would be entitled to if totally unemployed during that week, and the failure to work full time is due to the employer’s failure to provide full-time work and not due to the claimant's choice to work part-time. G.L. c. 151A, § 1(r)(1). See AH c. 9, § 2. The Board has held that in determining eligibility for partial UI, the employer’s obligation to provide full-time work must include work that is suitable.  BR-0014 0062 59 (3/9/15) (Key) (holding that a claimant who turned down a number of hours of work per week from her employer at a location she reasonably believed caused her health problems was entitled to partial unemployment benefits, interpreting the requirements of G.L. c. 151A, § 1(r)(1) to permit a claimant to refuse unsuitable work). Further, under G.L. c. 151A, §§ 29(a), (b), and 1(r), a claimant is in partial unemployment while working part-time, as needed for an employer, and may not be penalized for failing to accept shifts in order to engage in work- search activities designed to return to full-time employment. BR-0027 6968 52 (5/20/2019). Similarly, the Board found that a claimant with medical restrictions for whom no work was available with her primary employer, and who was able to work part-time for her subsidiary employer, was in partial unemployment and eligible for UI. BR 0029 7175 38 (11/25/19); and where a claimant needed to reduce her hours due to medical reasons and her employer could not accommodate her in order to keep her regular schedule, she was entitled to partial UI. BR 0030 0094 06 (1121/19); see also AH c. 9, § 2.

The following individuals are not considered to be unemployed and therefor ineligible for UI:

  • A person who is on a leave of absence at the individual's request (see more on leaves of absence, below);
  • An employee of an educational institution during a period between academic years or terms if the employee has a “reasonable assurance” of work in the subsequent year or term, G.L. c. 151A, § 28A (See Question 37);
  • On-call workers who have any work in a given week;
  • Any person who is self-employed (generally, 20 hours or more); and
  • A person who receives vacation pay when the employer closes a business for vacation purposes.

An employee in partial unemployment may be subject to "lost time" charges in any week that hours of work are turned down. G.L. c. 151A, §1(r) provides that any loss of remuneration "resulting from any cause other than failure of his employer to furnish full-time weekly schedule of work shall be considered as wages..." Therefore, although a claimant was not available for work while attending a wedding, the Board held it was improper to impose lost time charges where the claimant was not in partial employment and did not turn down work during the week of the wedding. BR-0027 7214 67 (8/20/19). The Board has interpreted this provision to incorporate a requirement that the work lost be suitable. In BR - 0021 5590 48 (1/31/18), the Board reversed lost time charges, finding that the claimant's parental obligations provided good cause for refusing work offered by the employer.

The Board has held, although a claimant performed services as an on-call emergency medical technician, because she was a municipal worker and was called to work only in the even of a fire or medical emergency and paid only if she is actually answered the call, the claimant's services are exempt under G.L. c. 151A, § 6A(5), and she is ineligible for UI. BR - 0011 1365 11 (11/17/15).

The Board has held that a claimant was in “total unemployment” under G.L. c. 151A, § 1(4), when he was between tours of duty on the employer’s merchant marine vessel. BR-111428 (02/25/2011), available at https://www.mass.gov/files/documents/2016/08/un/br-111428.pdf

Under a 2014 statutory change, crew members on a commercial fishing vessel are deemed to be in total unemployment during any period that fishing operations are closed due to federal fisheries management restrictions, as long as the crew member does not earn other wages during this time. St. 2014, c. 144, §§ 37, 63 amending G.L. c. 151A, §§ 1 (r)(2), 25(e), ¶ 5.

Leaves of Absence

Although the general rule is that individuals cannot be considered totally or partially unemployed if they are on a voluntary leave of absence from employment, there are exceptions to this rule. In BR-116510 (4/4/2011), the Board held that a claimant was still “partially or totally unemployed” for § 29(b) purposes and thus eligible for benefits for a certain week, even though he was still technically on a leave of absence. The Board reasoned that because the leave of absence was more of an “administrative hold” than an actual leave of absence, the claimant had constructively resigned.

If employees takes a leave from employment for a medical procedure with the intent to return to work afterward but are capable of performing other kinds of work in the meantime, they may be eligible for benefits. In BR-112431-EB-OP (2/23/2011) (Key) (disagreeing with the review examiner’s legal conclusion that a claimant who was injured and who planned to return to work after having surgery was not eligible for UI because she was on an “implied leave of absence.” and concluding instead that, in light of the fact she was still available for other forms of work despite her injury, her departure from her job (which required the use of her arm in lifting and carrying) constituted an involuntary separation for urgent, compelling, and necessitous reasons under § 25(e). 

Employees may also be eligible for UI when they only require a partial leave of absence yet were forced to separate from their jobs. In one case, a claimant with a recent cancer diagnosis had exhausted her sick time and requested intermittent FMLA leave for treatment. Her employer never responded to her request and instead suggested she resign, which she did after exhausting all other potential remedies. A later note from her nurse indicated that she required 1 - 2 days of leave per week for treatment, but was otherwise able to work. The Board found that the claimant was involuntarily separated from her job for urgent, compelling, and necessitous reasons. (BR-0024 7143 33 (9/24/2018). Similarly, the Board found that a claimant who went out on short term disability, had been effectively terminated when his employer canceled his health benefits and requested the claimant’s work equipment be returned. BR-0024 4938 00 (9/28/2018).

 


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