UIPL 41-83 Attachment 3

Draft Language to Implement Sections 521, 522 and 523 of P.L. 98-21

1.    Section 521--Treatment of Employees Performing Services for or Providing Services To Or On Behalf Of Educational Institutions

The provisions of Section 3304(a)(6)(A), FUTA as amended by P.L. 98-21 will require changes in State laws to provide for all of the between terms and within terms provisions that are now necessary for conformity with amended clauses (ii), (iii), and (iv) of Section 3304(a)(6)(A).  Those States that included such provisions in State laws with the modifications previously allowed when the provisions were optional, will need to amend their laws to assure that they apply to the full extent required by the Federal law.  Appropriate amendments to the State law will also be necessary for those States that decide to include the new optional clause (v) provision in the State law.

The following draft language is offered for purposes of developing amendments that satisfy each of the requirements in clauses (ii) through (v) of Section 3304 (a) (6) (A) , FUTA.  Changes will have to be made to the section references included herein by substituting citations to the parallel provisions in the State law.

Clause (ii) of Section 3304 (a) (6) (A), FUTA

"(B) With respect to services performed in any other capacity for an educational institution benefitsshall not be payable on the basis of such services to any individual for any week which commences during a period between two successive academic years or terms if such individual performs such services in the first of such academic years or terms and there is a reasonable assurance that such individual will perform such services in the second of such academic years or terms, except that if compensation is denied to any individual under this subparagraph and such individual was not offered an opportunity to perform such services for the educational institution for the second of such academic years or terms, such individual shall be entitled to a retroactive payment of compensation for each week for which the individual filed a timely claim for compensation and for which compensation was denied solely by reason of this subparagraph."

States whose laws contain this language but require a contract rather than a reasonable assurance as specified above, must amend their laws by deleting reference to a contract and substitute it where appropriate with the words "reasonable assurance" in order to apply this provision to the full extent required by Federal law.

What constitutes a "reasonable assurance" for the purposes of clauses (i), (ii) and (iii) is set forth on page 54 of the Commentary in the 1976 Draft Legislation, and in Questions and Answers 2, 3, 4 and 7 (pages 17, 18 and 20) of Supplement 1.  See also Question and Answer 4 (page 23) of Supplement 5.

Clause (iii) of Section 3304 (a) (6) (A) , FUTA

(C)  With respect to any services described in subparagraphs (A)¹ and (B)¹ benefits shall not be payable on the basis of services in any such capacities to any individual for any week which commences during an established and customary vacation period or holiday recess if such individual performs such services in the period immediately before such vacation period or holiday recess, and there is a reasonable assurance that such individual will perform such services in the period immediately following such vacation period or holiday recess."

State laws that now include this provision but apply it either to services performed by professional or nonprofessional
  employees, but not both, must be amended to make them applicable to both classes of services since the State no longer
  has the option to be selective in applying this provision.

Clause (iv) of Section 3304 (a) (6) (A) , FUTA

(D)  With respect to any services described in subparagraphs (A)¹ and (B)¹ benefits shall not be payable on the basis of services in any such capacities as specified in subpagraphs (A); (B) and (C) to any individual who performed such services in an educational institution while in the employ of an educational service agency.  For purposes of this subparagraph the term 'educational service agency' means a governmental agency or governmental entity which is established and operated exclusively for the purpose of providing such services to one or more educational institutions."

Any State which presently has this provision in its law but limits its application to services performed in either a professional or nonprofessional capacity but not both, must now amend its law to provide for application of the denial of benefits in the prescribed circumstances to both classes of services.  The distinction between these services that was previously allowed is no longer permissible under the new mandated requirements.

New Optional Clause (v) of Section 3304(a)(6)(A), FUTA

(E)  with respect to services to which section 3309(a)(1) applies (substitute equivalent State law citation to provisions defining employment for governmental entities and non-profit organizations), if such services are provided to or on behalf of an educational institution, benefits shall not be payable under the same circumstances and subject to the same terms and conditions as described in subparagraphs (A), (B),(C), and (D), (substitute equivalent State law citations)."

2Section 522--Application of Actively Seeking Work Requirements to EB Claimants Who Are Hospitalized Or Are On Jury Duty

The changes made to Section 202(a)(3)(A), EUCA by Section 522 of P.L. 98-21 were designed to allow States to apply corresponding provisions in the State law to claims for extended benefits so that those claims are treated in the same manner as claims for regular benefits.  However, the dual applicability of such provisions is permissible only to the extent that the provisions of the State law applicable to regular claims are identical to those allowed by Section 202(a)(3)(A)(ii), as amended.  As pointed out in Attachment I, State laws that relax the active search for work provision under conditions that go beyond those allowed by Section 202(a)(3)(A)(ii) still cannot applythose conditions for that purpose to claims for extended benefits.  Therefore, any amendments or interpretation of State law to implement the authorization in Section 522 must limit application of the State law to extended benefit claimants as prescribed by that authorization.

The following draft language is intended to be used by States that wish to modify the active search for work provisions for extended benefit claimants that is now included in State laws pursuant to the requirements of Section 202 (a) (3) (A) (ii) , EUCA, to reflect the amendments made by P.L. 98-21.  The language revises that provided to the States on page 1 of the Attachment to UIPL No. 14-81, as follows:

     "(h)(1) Notwithstanding the provisions of subsection (b) of this section, an individual shall be ineligible for payment of extended benefits for any week of unemployment in the individual's eligibility period if the Commissioner finds that during such period:

*                *            *            *            *

(B)   he failed to actively engage in seeking work asprescribed under paragraph (5), unless such individual is not actively engaged in seeking work because such individual is-

(i) before any court of the United States or any State pursuant to a lawfully issued summons to appear for jury duty,

(ii) hospitalized for treatment of an emergency or a life-threatening condition.

The entitlement to benefits of any individual who is determined not to be actively engaged in seeking work in any week for the foregoing reasons, shall be decided pursuant to the able and available requirements in Section     ^{1 without regard to the disqualification provisions otherwise applicable under Section      2 . The conditions prescribed in
            clauses (i) and (ii) of this subparagraph (B) must a applied in a same manner to individuals filing claims for regular
            benefits.  (New language underlined).}