Able and Available AA 235

Health or Physical Condition

This section discusses the claimant’s ability to work and availability for work when the claimant is ill or injured, or when the claimant restricts acceptable work due to a temporary or chronic medical condition. For information on availability issues due to alcohol or drug use, see AA 270.

A. Statutory Provisions

1. Unemp. Ins. Code Section 1253(c)

Unemp. Ins. Code Section 1253 provides in part:

There is no statutory requirement, nor any regulation, court case, or precedent decision, that requires the claimant to be able to work in a particular occupation. However, the claimant must be able to work in some occupation for which he or she is reasonably fitted through experience, training, or skills during each week claimed. A claimant who is unable to work an entire seven-day week does not meet the eligibility requirements of Section 1253(c) and may not be paid unemployment insurance benefits for that week. If, however, the claimant is able to work at least one day of the week, his or her eligibility is determined under Section 1253.5. (See Unemp. Ins. Code Section 1253.5 below.)

A disqualification under Section 1253(c) may be for a definite period of one or more weeks that have already passed, or for an indefinite period beginning during a week claimed and continuing until the claimant is once again able to seek, obtain, and perform some type of gainful employment. An indefinite disqualification extending into future weeks may be assessed provided at least one day of the continuous period of inability began in a week claimed. (See Validation Guide for a complete discussion.)

2. Unemp. Ins. Code Section 1253.5

Unlike Section 1253(c), which provides for disqualification for an entire week of benefits, Section 1253.5 provides that if the claimant is able to work at least one day during the week, benefits may be paid for each day the claimant could have worked, at the rate of 1/7th of the weekly rate per day. Additionally, a waiting period or disqualification week can be satisfied by a reduced week certification, as long as the claimant is able to work at least one day during the week.

Section 1253.5 provides in part:

The Appeals Board has interpreted Section 1253.5 as applicable to temporary medical conditions that affect specific dates when a claimant is unable to work, rather than to chronic conditions that limit the number of days in any week that a claimant is able to work.

In P-B-409, the claimant worked as an Employment and Claims Assistant for EDD. As a result of several heart attacks, she had been limited to working three days per week. The Department accommodated the claimant’s restriction and scheduled her for work accordingly. When the claimant filed a claim for UI benefits, the Department denied benefits under Section 1253.5 of the Code on the basis that she was entitled only to 3/7th of the weekly benefit amount because her health would not permit her to work every day of the week. In her appeal, the claimant contended that Section 1253.5 is only applicable when a claimant is unable to work because of illness or injury, and not in her case. In its decision, the Board stated:

Consequently, the availability of persons restricted to working a limited number of days per week due to health reasons should be determined in the same manner as any other ongoing "good cause" restriction.

As in Section 1253(c), the claimant need not be able to work in his or her usual occupation to be eligible for benefits, but, the claimant must be able to perform gainful employment.

B. General Concepts Governing Ability to Work Determinations

When the claimant reports an inability to work full-time in his or her usual occupation at the initial claim filing point, or an inability to work for a week or longer on continued claim form, a determination is required to establish eligibility under Section 1253(c). A benefit reduction (BR), due to inability to work a portion of a week, is considered a routine claims function and does not require a determination unless the claimant protests the reduction of benefits.

Exception: If the claimant is unable to work for a period of one to six days during a week claimed and the period of disability extends indefinitely into future weeks, assess a BR disqualification under Section 1253.5 for the week claimed and under Section 1253(c) for an indefinite period beginning the following week.

Determinations involving inability to work are resolved using the same criteria as other determinations under Section 1253(c). When a claimant states he or she is unable to perform any work, facts are sufficient to disqualify based on the claimant’s statement. However, when the claimant alleges his or her ability to work is restricted due to health reasons, extensive fact-finding must be conducted to determine if (1) good cause is established for the restrictions, and (2) a substantial field of employment remains open to the claimant (Sanchez criteria). Refer to AA 5 for a complete discussion of the Sanchez case.

1. Establishing Good Cause for Restriction(s)

Establishing good cause for limited availability due to a health or physical condition is normally easier than for other types of restrictions. Sometimes a claimant’s reason for restriction is obvious. For example, a claimant may report to the field office in a wheelchair or with his or her jaw wired shut. In other cases, it may be necessary to contact a health care provider or obtain a medical statement to verify restrictions due to health reasons.

The Department may require the claimant to provide medical substantiation to establish "good cause" for one or more restrictions on availability. However, the Department may NOT require that the particular medical affliction be disclosed.

In Cathy Gunn v. Employment Development Department and the California Unemployment Insurance Appeals Board, a 1979 California Appellate Court case, the claimant was denied benefits because she refused to answer questions relating to her apparent pregnancy. At the appeal hearing, the claimant produced a note from her doctor which stated that she was "in good health and may work." Since she continued to refuse to disclose information about her condition, the ALJ, Appeals Board, and superior court affirmed the Department’s denial of benefits. However, the Court of Appeals reversed this decision, finding that the Department should have accepted the physician’s statement as prima facie proof of the claimant’s ability to work. The court held that the inquiry into the claimant’s pregnancy was an unconstitutional invasion of her right to privacy.

As with any availability issue, once the claimant has established good cause for a medical restriction(s), the Department is required to determine if a substantial field of employment remains open to the claimant. However, if good cause is not established for the restriction, the claimant would be ineligible under Section 1253(c) if the labor market is materially reduced.

2. Effect of Restrictions on the Labor Market

Although a doctor’s statement that an individual is able to work is a significant factor, the presence of such a statement does not automatically render a claimant able and available for work. Issues of this type must be resolved in the same manner as any other issue under Section 1253(c); there must remain a substantial field of employment available to the claimant within the restriction.

Example:

The doctor states that the claimant can do "light work" or "sedentary work." The Department must then determine the existence of a substantial field of employment within the restrictions. To do so, the interviewer should consider the following:

What kind of "light" or "sedentary" work is the claimant qualified to do by experience or training?

Is the claimant ready and willing to seek and accept such work under the prevailing labor market conditions?

Does such work exist with a substantial number of employers in the area where the claimant is offering his or her services?

If there is no work within the claimant’s restrictions for which he or she is suited, or if the claimant is not willing to seek and accept such work under prevailing conditions, the requirement that the claimant be available to a substantial field of employment has not been met and the claimant would be ineligible under Section 1253(c).

3. Medical Statements

Although a doctor’s certification of inability to perform work is usually accepted as conclusive proof that the claimant is ineligible under Section 1253(c), that presumption is rebuttable.

Example:

A claimant with a chronic heart ailment has been told by his doctor that he should not work under any circumstances. The facts show that the doctor has given this advice for years, and that the claimant has consistently ignored the doctor’s advice and worked. The claimant has consistently been employed even though from time to time, he has had heart attacks. From the standpoint of the claimant, who has no means of livelihood other than by working, he has no choice. In addition, he has demonstrated that he was able to and did work in the past, despite the doctor’s advice. With such a history, a claimant’s statement that he is able to work, combined with a work search that shows a genuine attachment to the labor market, is sufficient to overcome the doctor’s opinion that the claimant is not able to work.

4. The Americans With Disabilities Act

The Americans With Disabilities Act (ADA), passed by the Congress in 1990, grants far-reaching protections for disabled persons in the United States. For employment-related matters, the law became effective for employers with 25 or more employees on July 26, 1992; for employers with 15 24 employees, July 16, 1994.

Among other provisions, this legislation requires employers to provide reasonable accommodation for qualified applicants and employees whose disability substantially limits one or more major life activities. This includes steps such as job restructuring and modification of equipment. Employers need not provide accommodations that impose an "undue hardship" on business operations.

When conducting able and available (A & A) determinations, interviewers should consider that ADA extends the disabled individual’s attachment to the labor market by requiring employers to consider the person’s ability to perform the essential functions of the job, with or without reasonable accommodation. Disabled persons, who in the past might have been considered unable to perform a particular job because of physical restrictions, now enjoy a greater chance of consideration for the position due to the passage of ADA.

Refer to PR 25 for a complete discussion of ADA.

C. Types of Health Restrictions

A claimant’s ability to work and availability to work may be restricted in a variety of different ways due to medical reasons. Such restrictions may be the result of temporary or chronic medical conditions, or needs resulting from medical treatment. For example, the claimant may be unable to work:

• In his or her usual occupation.
• Outside a certain geographic area due to restrictions on transportation.
• On a full-time basis, due to restrictions on number of days per week or hours per day.
• Without special equipment to accommodate a disability.
• In occupations that require specific physical movements, e.g., kneeling, stooping, climbing, bending, etc.
• In occupations that require licenses that the claimant cannot obtain due to medical reasons.
• In certain working environments that provoke an allergic response.

Some of the more common situations are discussed below:

1. Age

Advanced age of itself does not render a claimant unable to work. It is only when advanced age reduces an individual’s physical capacity for work that the question of ability to work must be resolved. It is only the claimant’s ability to work that is considered for UI eligibility purposes, not the employer community’s resistance to hiring persons of advanced age.

For example, in P-B-196, the claimant became unemployed due to forced retirement at age 74. Since he had worked for various banks for 5 years, he sought bank employment. Because of his age, there was no possibility of his being hired by a bank. He also had attempted to become self-employed, but lacked capital to invest in such an enterprise. There was no evidence that the claimant was mentally or physically unable to do the type of work for which he was qualified by experience, however, he made no other efforts to find work except contacts with a few friends. In its decision, the Board stated:

The Board held, however, that the claimant was ineligible under the seek work provision of the code and said:

Frequently, aged claimants place restrictions on acceptable work, not due to their age or health reasons, but due to receipt of other benefits such as retirement, Social Security, or disability pensions. Refer to AA 360 when restrictions are imposed on availability, or TPU BDG for a discussion of retirement benefits.

2. Communicable Diseases

A communicable disease is one which is capable of being transmitted to or from another person. A communicable disease can be either infectious or contagious, such as, smallpox, tuberculosis, mumps, measles, chicken pox, whooping cough, etc. While this list is not complete, it is representative of the general types of diseases.

A claimant may be unable to work, or may be prohibited from working by an employer or the law, if afflicted by a communicable disease. Normally, such restrictions apply to food industry employees, but they may also apply to other occupational groups that deal with physical public contact.

The ADA requires the Secretary of Health and Human Services to annually publish and widely disseminate a list of infectious and communicable diseases which are transmitted through handling of the food supply.

Health officers employed by the county, city, or district health department or health board have certain duties in regard to restaurants. Per Section 28688 of the Health and Safety Code, such officers, after investigation of possible disease transmission and for reasonable cause may:

Remove the employee or owner from the restaurant, itinerant restaurant, vehicle, or affected vending machine operation.

Close the restaurant operation until no further danger of disease outbreak exists in the opinion of the health officer.

Require medical examination of the owner, employee, and co-workers to show that no one is affected with or a carrier of any disease in a communicable form.

Employers are obliged to comply with state law, as well as any county, city, or district ordinances which might be in effect for their location. Of the general subject of food sanitation, for instance, Section 28295 of the Health and Safety Code provides:

As a result, a person so afflicted cannot work in certain occupations in which food may become contaminated and disease communicated to the general public, regardless of how "good" the person feels. Such a claimant will not be considered available for work in the food industry. However, the claimant may be available for work outside the food industry if attachment to a second labor market is shown.

Example: The claimant suffers from a mild form of tuberculosis and can no longer work in a restaurant as a waitress. The claimant can, however, work as a sewing machine operator, her second occupation. In the absence of other disqualifying restrictions, the claimant would be considered available for work.

It is the claimant’s responsibility to inform the employer if a contagious, infectious, or communicable disease is contracted, so that the employer may comply with provisions of law. The claimant also has a responsibility to advise the Department if a disease is contracted, so his or her eligibility may be decided.

In the event the claimant becomes subject to quarantine, confined to the home or elsewhere, the claimant would not be eligible under Section 1253(c) because the individual is not available to a substantial field of employment.

Acquired Immune Deficiency Syndrome (AIDS) is also an infectious, contagious, communicable disease, but it is not transmitted in the same manner as tuberculosis, chickenpox, or most other communicable diseases. However, because persons afflicted with the disease may be unjustly perceived as impaired when they are able to work, they are granted protection from discrimination by the ADA. The eligibility of a person with AIDS or HIV should be determined in the same manner used to decide eligibility for any other chronic medical condition. It should be noted that HIV-infected persons and AIDS patients are not obligated to disclose their medical condition to prospective employers.

3. Loss or Impaired Use of Hearing, Speech, Vision, or Limb

Persons who suffer from loss or impaired use of hearing, speech, vision, or limb are considered to have a disability affecting one or more major life activities. Their access to equal employment opportunities is protected under the ADA.

Claimants with such impairments are subject to the same availability test as other claimants. Good cause is established for any restriction directly related to their impairment, thus, the only other consideration is whether they are available to a substantial field of employment.

In some instances, the individual’s disability will be so long-standing that his or her entire work history was achieved with the presence of the physical limitations. In such cases, no A & A issue exists because the claimant is able to work in his or her usual occupation (provided there has been no change in the claimant’s condition and the claimant has placed no other restrictions on acceptable employment).

However, if the impairment is relatively recent or the condition has recently worsened, extensive fact finding may be required to establish the claimant’s attachment to a substantial field of employment by applying the same standards that pertain to other types of good cause restrictions:

What suitable employment is the claimant able to seek, obtain, and perform?

Is the claimant ready and willing to seek and accept this work under prevailing conditions?

Does such work exist with more than a minimal number of employers in the labor market area where the claimant is offering his or her services?

If the above criteria are satisfied, the claimant is eligible under Section 1253(c).

4. Pregnancy

The Federal Unemployment Tax Act (FUTA), 26 USC 3304 (a) (12), provides that "no person shall be denied compensation . . . solely on the basis of pregnancy or termination of pregnancy."

There is no provision in the Calif. Unemp. Ins. Code pertaining to the availability of claimants who are pregnant. Consequently, availability under such circumstances must be determined in the same manner as all other availability issues. The claimant must be ready, willing, and able to accept suitable employment. If restrictions are placed on acceptable employment, the claimant must show good cause for the restrictions, and a substantial field of employment must remain open to the claimant.

If, due to pregnancy, the claimant voluntarily leaves work, refuses work, is reluctant to seek work, or places unreasonable restrictions on acceptable work, an availability issue exists under Section 1253(c). However, if the claimant demonstrates a willingness to work without any restrictions, she is presumed available.

This concept was further enforced as a result of the Cathy Gunn case wherein the court found that because the claimant’s unemployment was not due directly to her pregnancy, she had placed no additional restrictions on her availability, and she was willing to seek employment in her usual occupation for which there was a substantial remaining labor market, she should be considered able to work.

Employers Unwilling to Hire Pregnant Woman

The fact that employers may not be willing to hire pregnant women, of itself, is no bar to holding a pregnant woman available for work. For example, in P-B-197, the claimant, a general office clerk, was in her seventh month of pregnancy. Because employers in the area were generally unwilling to hire applicants who were noticeably pregnant, the field office policy was to withhold referrals in such cases. However, a labor market existed for clerk-typists in the area and the claimant was willing to accept this work. The Board held that the referral policy of the field office did not render the claimant unavailable since a labor market existed and she placed no restrictions on suitable work.

Since employers in certain industries may be reluctant to hire pregnant women, consideration should be given to the claimant’s occupational skills and employer attitudes when assigning such a claimant’s seek work plan.

Post-Pregnancy Eligibility

While some women can and do return to work soon after the birth of their child, usually the claimant will refrain from accepting immediate employment either through preference or by orders of her doctor.

P-B-69 discussed the case of a claimant whose doctor would not release her to return to immediate work. The claimant was in continued claim status at the time she entered the hospital on April 10 to give birth. Her baby was born two hours later. When the claimant was released from the hospital on April 12, she felt able to return to work. The claimant certified for benefits for the weeks ending April 12 through May 3 without reporting her hospitalization or the birth of her baby. At the appeal hearing the claimant presented a doctor’s statement dated August 12, which said the claimant could have returned to work May 26. In determining that the claimant was not able to work during the period in question, the Appeals Board stated:

Any presumption that a claimant is not able to work immediately following childbirth, is rebuttable by medical verification that the claimant is able to return to work.

5. Allergies

Allergies may cause a person to restrict to certain types of work, (e.g., a carpenter who suddenly develops an allergic response to dirt or dust), certain methods of performing work (e.g., a janitor who cannot use particular cleaning solutions), or certain work environments (e.g., an office worker who develops headaches from co-workers’ cigarette smoke). A person with no prior history of allergy can develop symptoms that make it impossible to continue or begin work under circumstances that aggravate the allergic response. If the allergy is substantiated, the claimant will have good cause for the restriction, but must still be available to a substantial field of employment. Substantiation may take the form of a doctor’s statement or prior medical history. This type of availability issue is often identified when a claimant has voluntarily left a job or has refused an offer of work. Restrictions of this type should be resolved in the same manner as any other health restriction.

D. Relationship Between UI and DI

The UI Code also provides for a system by which a wage earner may be compensated for wage loss because of sickness or injury. This compensation program is known variously as Unemployment Compensation Disability (UCD), State Disability Insurance (SDI), or Disability Insurance (DI). Among EDD employees, the program is most commonly referred to as DI.

Since both UI and DI programs are paid to qualified unemployed individuals, there are times when eligibility for a particular program is unclear. UI interviewers do not need to be familiar with all DI laws and regulations, but should be aware of procedures to follow when the claimants have applied for, or received, benefits under both programs.

1. Statutory Basis for DI eligibility

Unemp. Ins. Code Section 2626 provides that "An individual shall be deemed disabled on any day in which, because of his or her physical or mental condition, he or she is unable to perform his or her regular or customary work."

Because of the above definition, it is possible for a claimant to be eligible for consideration for both UI and DI at the same time because:

The UI program permits payment of benefits to claimants who are unable to work in their usual or customary occupation but are attached to a labor market by being able to seek, obtain, and perform other gainful employment.

The DI program permits payment of benefits to claimants who are unable to work in their usual or customary occupation, whether or not they can perform other work.

There is no provision in the Code by which UI benefits may be denied because of receipt of DI. However, Unemp. Ins. Code Section 2628 prohibits paying DI for a period for which the claimant has UI eligibility.

In P-B-369, the Appeals Board commented on the relationship between UI and DI benefits:

The Appeals Board concluded: "That an individual should not claim unemployment benefits as able to work and at the same time claim disability benefits as unable to work for the same days seems elementary."

2. UI/DI Overlap

When notified of an overlap of UI and DI certification, an AA determination is required to evaluate the claimant’s eligibility under Sections 1253(c) and/or 1253.5. The fact that the claimant may be eligible for DI is considered, but not controlling. UI/DI overlap determinations should be conducted using the same criteria as other determinations involving ability to work issues, including consideration of the following:

What type of gainful employment is the claimant able to seek, obtain, and perform? (Such employment must be suitable for the claimant based on the individual’s experience, training, and skills.)

Is the claimant ready and willing to seek and accept such work under prevailing conditions?

Does such work exist with more than a minimal number of employers in the geographical area where the claimant is offering his or her services?

If the claimant satisfies the requirements of Sections 1253(c) and/or 1253.5, he or she would be held eligible for UI benefits for the period of the overlap. If the claimant does not meet the eligibility requirements, a disqualification should be issued.

If the claimant is able and available for work under Section 1253(c) for a period he or she can also qualify for DI benefits, the UI entitlement supersedes the potential DI benefits. Upon notification of the decision on UI eligibility, the DI interviewer will adjust the claimant’s DI eligibility accordingly.

In P-B-462, a claimant became disabled from his usual occupation as a truck driver and loader/unloader when some heavy glass doors fell against him. After his injury he conducted an active search for work in fields outside his usual occupation, such as operating a passenger bus and driving a forklift, for which there was a substantial field of employment. Five months later the claimant filed a claim for DI benefits, showing the last date he was able to work in his usual occupation was the date of the injury. The claimant’s UI and DI benefit eligibility periods overlapped, and in fact the claimant received benefits from both programs for a three-week period.

The Appeals Board found that the claimant satisfied both elements of the Sanchez availability test, and stated:

The Board left the matter of the UI/DI overlap to be resolved by the disability insurance office.

It should be noted that a claimant’s eligibility under Section 1257(a) is often a consideration in conjunction with UI/DI overlap cases. Refer to MI BDG for a discussion of this issue.

3. Recent Disability Insurance Claim

Claimants who have just concluded receiving DI benefits fall into two groups:

Individuals whose DI benefits ended because the doctor released the claimant to return to work.

Individuals who have exhausted their disability benefits.

In the first group there is usually no AA issue because the claimant has been released by the doctor to return to the individual’s usual or customary work.

However, a potential availability issue does exist in the second group of claimants. It may be necessary to obtain a doctor’s certification in order to determine what effect if any, the claimant’s physical or mental condition may have on his or her ability to work.

E. Relationship of AA and Workers’ Compensation

Since workers’ compensation (WC) benefits are paid to persons who are unable to work in the occupation they were performing at the time of their on-the-job injury, receipt of WC benefits raises an AA issue. However, receipt of WC benefits does not automatically render a claimant unable to work. Claimants who receive WC may be eligible under Sections 1253(c) and 1253.5, provided they are able to seek, obtain, and perform gainful employment for which they are reasonably fitted, have good cause for any restriction(s), and are available to a substantial field of employment.

Under Section 1255.5, a claimant’s UI benefits are reduced by the amount of temporary total disability benefits (including vocational rehabilitation maintenance allowance) received for that week. Receipt of other WC benefits, such as permanent disability or medical benefits, are not disqualifying. (Refer to TPU BDG for a complete discussion of WC as deductible income.)

Note: If a claimant is unable to work for part of a week, and received WC for the same period, the UI benefit for that week is reduced by both Section 1253.5 (BR) and WC (the amount of either temporary total disability benefits or vocational rehabilitation maintenance allowance, but not permanent disability benefits).