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§ 802. Ineligibility for compensation

Purdon's Pennsylvania Statutes and Consolidated StatutesTitle 43 P.S. LaborEffective: October 23, 2013

Purdon's Pennsylvania Statutes and Consolidated Statutes
Title 43 P.S. Labor (Refs & Annos)
Chapter 14. Unemployment Compensation Law (Refs & Annos)
Article IV. Compensation (Refs & Annos)
Effective: October 23, 2013
43 P.S. § 802
§ 802. Ineligibility for compensation
An employe shall be ineligible for compensation for any week--
(a) In which his unemployment is due to failure, without good cause, either to apply for suitable work at such time and in such manner as the department may prescribe, or to accept suitable work when offered to him by the employment officer or by any employer, irrespective of whether or not such work is in “employment” as defined in this act: Provided, That such employer notifies the employment office of such offer within seven (7) days after the making thereof; however this subsection shall not cause a disqualification of a waiting week or benefits under the following circumstances: when work is offered by his employer and he is not required to accept the offer pursuant to the terms of the labor-management contract or agreement, or pursuant to an established employer plan, program or policy: Provided further, That a claimant shall not be disqualified for refusing suitable work when he is in training approved under section 236(a)(1) of the Trade Act of 1974.1
(a.1) In which his unemployment is due to failure to accept an offer of suitable full-time work in order to pursue seasonal or part-time employment.
(b) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature, irrespective of whether or not such work is in “employment” as defined in this act: Provided, That a voluntary leaving work because of a disability if the employer is able to provide other suitable work, shall be deemed not a cause of a necessitous and compelling nature: And provided further, That no employe shall be deemed to be ineligible under this subsection where as a condition of continuing in employment such employe would be required to join or remain a member of a company union or to resign from or refrain from joining and bona fide labor organization, or to accept wages, hours or conditions of employment not desired by a majority of the employes in the establishment or the occupation, or would be denied the right of collective bargaining under generally prevailing conditions, and that in determining whether or not an employe has left his work voluntarily without cause of a necessitous and compelling nature, the department shall give consideration to the same factors, insofar as they are applicable, provided, with respect to the determination of suitable work under section four (t):2 And provided further, That the provisions of this subsection shall not apply in the event of a stoppage of work which exists because of a labor dispute within the meaning of subsection (d). Provided further, That no otherwise eligible claimant shall be denied benefits for any week in which his unemployment is due to exercising the option of accepting a layoff, from an available position pursuant to a labor-management contract agreement, or pursuant to an established employer plan, program or policy: Provided further, That a claimant shall not be disqualified for voluntarily leaving work, which is not suitable employment to enter training approved under section 236(a)(1) of the Trade Act of 1974. For purposes of this subsection the term “suitable employment” means with respect to a claimant, work of a substantially equal or higher skill level than the claimant's past “adversely affected employment” (as defined in section 247 of the Trade Act of 1974),3 and wages for such work at not less than eighty per centum of the worker's “average weekly wage” (as defined in section 247 of the Trade Act of 1974).
(c) With respect to which or a part of which he has received or is seeking unemployment benefits under an unemployment compensation law of any other state or of the United States: Provided, That if the appropriate agency of such other state or of the United States finally determines that he is not entitled to such unemployment benefits, the disqualification shall not apply.
(d) In which his unemployment is due to a stoppage of work, which exists because of a labor dispute (other than a lock-out) at the factory, establishment or other premises at which he is or was last employed: Provided, That this subsection shall not apply if it is shown that (1) he is not participating in, or directly interested in, the labor dispute which caused the stoppage of work, and (2) he is not a member of an organization which is participating in, or directly interested in, the labor dispute which caused the stoppage of work, and (3) he does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in, or directly interested in, the dispute.
(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is “employment” as defined in this act; and
(e.1) In which his unemployment is due to discharge or temporary suspension from work due to failure to submit and/or pass a drug test conducted pursuant to an employer's established substance abuse policy, provided that the drug test is not requested or implemented in violation of the law or of a collective bargaining agreement.
(f) Repealed by 1974, Dec. 5, P.L. 769, No. 261, § 3, imd. effective.
(g) Any part of which is included in the one-year period immediately following the date on which he is finally convicted of the illegal receipt of benefits under this act in any penal proceedings instituted against him under the provisions of this act or any other statute of the Commonwealth.
(h) In which he is engaged in self-employment: Provided, however, That an employe who is able and available for full-time work shall be deemed not engaged in self-employment by reason of continued participation without substantial change during a period of unemployment in any activity including farming operations undertaken while customarily employed by an employer in full-time work whether or not such work is in “employment” as defined in this act and continued subsequent to separation from such work when such activity is not engaged in as a primary source of livelihood. Net earnings received by the employe with respect to such activity shall be deemed remuneration paid or payable with respect to such period as shall be determined by rules and regulations of the department.
(i) Repealed by 1983, July 21, P.L. 68, No. 30, § 17, effective January 1, 1984.
(j) In which the employe fails to participate in reemployment services, such as job search assistance services, if it has been determined that the employe is likely to exhaust regular benefits and to need reemployment service pursuant to a profiling system established by the department, unless the department determines that (1) the employe has completed such services or (2) there is justifiable cause for the employe's failure to participate in such services.
(k) In which the employe's unemployment is due to a separation from work initiated by the employe or the employer in order to preserve the employe's existing entitlement to a pension, including a governmental or other pension, retirement or retired pay, annuity or any other similar periodic payments.

Credits

1936, Second Ex.Sess., Dec. 5, P.L. (1937) 2897, art. IV, § 402. Amended 1939, June 20, P.L. 458, No. 261, § 2; 1942, Ex.Sess., April 23, P.L. 60, No. 23, § 4; 1943, May 21, P.L. 337, No. 157, § 1; 1945, May 29, P.L. 1145, No. 408, § 9; 1947, June 30, P.L. 1186, No. 493, § 2; 1949, May 23, P.L. 1738, No. 530, § 11; 1953, Aug. 24, P.L. 1397, No. 396, § 4; 1955, March 30, P.L. 6, No. 5, § 5; 1959, Dec. 17, P.L. 1893, No. 693, §§ 8, 9, 10; 1971, Sept. 27, P.L. 460, No. 108, § 17; 1974, Dec. 5, P.L. 769, No. 261, § 2, imd. effective; 1974, Dec. 5, P.L. 771, No. 262, § 7, imd. effective; 1977, July 6, P.L. 41, No. 22, § 4, eff. Jan. 1, 1978; 1980, July 10, P.L. 521, No. 108, §§ 12 to 14, imd. effective; 1981, Oct. 22, P.L. 301, No. 106, § 1, imd. effective; 1995, Nov. 17, P.L. 615, No. 64, § 2, effective Jan. 1, 1996; 2002, Dec. 9, P.L. 1330, No. 156, § 3, imd. effective; 2013, Oct. 23, P.L. 637, No. 75, § 4, imd. effective.
HISTORICAL AND STATUTORY NOTES
Act 1939-261 legislation
The 1939 amendment made nonsubstantive changes and added subsec. (c).
Act 1942-23 (Ex.Sess.) legislation
The 1942 amendment inserted “or waiting period credit” in the introduction; in subsec. (a) substituted “at such time and in such manner as the department may prescribe or by his previous employer” for “when so directed by the employment office, or to accept suitable work when offered to him by the employment office”; in subsec. (b) substituted “without good cause: Provided, that no employee shall be deemed to be ineligible under this section” for “except” and substituted “such” for “the”; and added subsec. (d).
Act 1943-157 legislation
The 1943 amendment in subsec. (a) inserted “or to accept suitable work when offered to him by the employment office”.
Act 1945-408 legislation
The 1945 amendment rewrote the section and added subsecs. (e) and (f). Prior to amendment the section read:
“An employe shall be ineligible for compensation or waiting period credit for any week--
“(a) In which his unemployment is due to failure, without good cause, either to apply for suitable work at such time and in such manner as the department may prescribe, or to accept suitable work when offered to him by the employment office or by his previous employer. In determining whether or not any work is suitable for an individual, the department shall consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training and experience, and the distance of the available work from his residence;
“(b) In which his unemployment is due to voluntarily leaving work without good cause: Provided, That no employe shall be deemed to be ineligible under this section where as a condition of continuing in employment such employe would be required to join or remain a member of a company union or to resign from or refrain from joining any bona fide labor organization, or to accept wages, hours or conditions of employment not desired by a majority of the employes in the establishment or the occupation, or would be denied the right of collective bargaining under generally prevailing conditions.
“(c) With respect to which or a part of which he has received or is seeking unemployment benefits under an unemployment compensation law of any other state or of the United States: Provided, That if the appropriate agency of such other state or of the United States finally determines that he is not entitled to such unemployment benefits, the disqualification shall not apply.
“(d) In which the employe's total unemployment is due to a voluntary suspension of work resulting from an industrial dispute, but this disqualification shall apply only to the week in which the suspension occurred and for the three consecutive weeks of total unemployment which immediately follow such week.”
Act 1947-493 legislation
The 1947 amendment in subsec. (b) substituted “subsection” for “section”, and added the second proviso; and rewrote subsec. (d), which prior thereto read:
“(d) In which his unemployment is due to a voluntary suspension of work resulting from an industrial dispute, at the factory, establishment or other premises at which he is or was last employed: Provided, That this disqualification shall apply only to any week of unemployment which, in whole or in part, includes any part of a period beginning with the day on which such suspension occurs and ending with (i) the last day of the fourth calendar week immediately following the calendar week in which such suspension occurs, or (ii) the day on which such suspension was terminated, whichever is the earlier”.
Act 1949-530 legislation
The 1949 amendment in subsec. (d) inserted “(other than a lock-out)” and added subsec. (g).
Act 1953-396 legislation
The 1953 amendment inserted in subsecs. (a) and (b) “irrespective of whether or not such work is in ‘employment’ as defined in this act”, and inserted the same provision in subsec. (e) but without the word “in”; in the proviso of subsec. (a), deleted “simultaneously” preceding “notifies” and added “within three (3) days after the making thereof”; and in subsec. (b), following “under section four(t),” inserted “marital, filial and domestic circumstances and obligations shall not be deemed good cause within the meaning of this act”.
Act 1955-5 legislation
The 1955 amendment in subsec. (b) substituted the first appearance of “cause of a necessitous and compelling nature” for “good cause”, and deleted the provision, inserted in 1953, that “marital, filial and domestic circumstances and obligations shall not be deemed good cause within the meaning of this act”.
Act 1959-693 legislation
The 1959 amendment in subsec. (b) numbered the paragraph and added the second paragraph inserted the first proviso relating to pregnancy, and substituted the third appearance of “cause of a necessitous and compelling nature” for “good cause”; rewrote subsec. (f); and added subsec. (h). Prior to amendment subsec. (f) read:
“(f) Which in whole or in part includes any part of the two-week period which immediately follows each period of employment under Shipping Articles.”
Act 1971-108 legislation
The 1971 amendment added subsec. (i).
For the effective date of the 1971 amendment, see note following 43 P.S. § 753.
Act 1974-261 legislation
Act 1974, No. 261, in subd. (b)(1) in the first proviso substituted “a disability if” for “pregnancy, whether or not”, and inserted “suitable”; and deleted subsec. (f) which prior thereto read:
“(f) Which with respect to an employe who has been discharged or laid off by her employer from work by reason of pregnancy is included in whole or in part within the period beginning ninety (90) days prior to anticipated birth and ending thirty (30) days after birth of the child: Provided, however, That the provisions of this subsection shall be applicable whether or not such work was in “employment” as defined in this act.”
Act 1974-262 legislation
Act 1974, No. 262, in the proviso in subsec. (a) substituted seven days for three days.
Act 1977-22 legislation
The 1977 amendment in subsec. (i) inserted “prior to January 1, 1978”.
Section 14 of Act 1977, July 6, P.L. 41, No. 22, provides:
“Should the Federal statute relating to the inclusion of employees of political subdivisions within the State's unemployment compensation laws as a requirement for receiving Federal unemployment funds or loans be declared unconstitutional the provisions added to the Unemployment Compensation Law by this amendatory act are repealed insofar as they relate to political subdivisions and their employees.”
Act 1980-108 legislation
The 1980 amendment in subsec. (a), added “however this subsection * * * plan, program or policy”; added subsec. (a.1); and in subsec. (b), added the proviso that no claimant should be denied benefits for accepting a layoff pursuant to an agreement or pursuant to an employer plan, program or policy, deleted a paragraph designated as subd. (b)(2) and deleted the designation of subd.(b)(1). Prior to amendment, subd. (b)(2) read:
“(2) In which his or her unemployment is due to leaving work (I) to accompany or to join his or her spouse in a new locality, or (II) because of a marital, filial or other domestic obligation or circumstance, whether or not such work is in “employment” as defined in this act: Provided, however, That the provisions of this subsection (2) shall not be applicable if the employee during a substantial part of the six months either prior to such leaving or the time of filing either an application or claim for benefits was the sole or major support of his or her family, and such work is not within a reasonable commuting distance from the new locality to which the employee has moved.”
Act 1981-106 legislation
The 1981 Amendment in subsecs. (a) and (b) added the last provisos.
Section 6(1) of Act 1981, Oct. 22, P.L. 301, No. 106, provides:
“The amendments made [to this section] shall apply to determinations regarding training under the Trade Act of 1974 [19 U.S.C.A. § 2101 et seq.] that are made after September 30, 1981.”
Act 1995-64 legislation
The 1995 amendment added subsec. (j).
Act 2002-156 legislation
Act 2002-156, § 3, added subsec. (e.1).
Act 2013-75 legislation
Act 2013-75, § 4, added par. (k).
Section 6(3) of 2013, Oct. 23, P.L. 637, No. 75, imd. effective, provides that the addition of 43 P.S. § 802(k) shall apply to benefit years beginning on or after the effective date of this section.

Footnotes

19 U.S.C.A. § 2296.
43 P.S. § 753.
19 U.S.C.A. § 2319.
43 P.S. § 802, PA ST 43 P.S. § 802
Current through 2020 Regular Session Act 8. Some statute sections may be more current, see credits for details.
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