Unemployment Insurance

Web Library Topic - Eligibility Requirements

The basic requirements that a claimant must show to receive unemployment benefits for a a particular week are that the claimant must be 1.) able to work, 2.) available to work, 3.) actively seeking work, and 4.) there must be benefits available to the claimant in his or her account.  However, there can be other requirements or restrictions, depending on a particular claimant's circumstances.

Statutes

§ 8‑73‑107 C.R.S. 2005

(1) Any unemployed individual shall be eligible to receive benefits with respect to any week only if the division finds that:

(a) He has registered for work at and thereafter has continued to report at an employment office in accordance with such regulations as the director of the division may prescribe; except that the director of the division, by regulation, may waive or alter either or both of the requirements of this paragraph (a) as to individuals attached to regular jobs and as to such other types of cases or situations with respect to which he finds that compliance with such requirements would be oppressive, or would be inconsistent with the purposes of articles 70 to 82 of this title, but that no such regulation shall conflict with section 8-73-101;

(b) He has made a claim for benefits in accordance with the provisions of section 8-74-101;

(c)(I) He is able to work and is available for all work deemed suitable pursuant to the provisions of section 8-73-108, and, with respect thereto:

(A) Decisions of the division regarding the ability of the claimant to work, the availability of the claimant for work, and the claimant's active search for work may be appealed by the claimant or by any employer whose account may be charged with any benefits paid pursuant to such decision, if the appeal is made within fifteen calendar days, as defined in section 8-70-103 (5), after the date on the notice of any such decision;

(B) A potentially chargeable employer may protest on the basis of inability to work, nonavailability for work, or failure to search for work within fifteen calendar days after the date on which he discovers such a condition to exist, within thirty days after the date on which payment was made for the week during which the claimant is alleged to have been unable to work or unavailable for work, or within sixty calendar days after the mailing date of the report of quarterly benefit charges, whichever comes first;

(C) No individual shall be considered available for work during any week in which he has no reasonable expectation of securing employment in his usual occupation or in an occupation for which he is reasonably qualified as a result of his movement to an area;

(D) No individual shall be denied benefits because of nonavailability or failure to make an active search for work solely due to his compliance with a summons to report for jury duty. Remuneration received in connection with such duty shall not be considered wages, as defined in section 8-70-141 (1)(a), and the individual's weekly benefit amount shall not be reduced as prescribed in section 8-73-102 (4).

(E) If an individual left employment because of health-related reasons, the division may require a written medical statement issued by a licensed practicing physician addressing any matters related to health.

(II) Nothing in this paragraph (c) shall prevent the division from reviewing and redetermining any decision at any time if the redetermination is based upon facts not known to the division at the time of its original decision.

(d) The individual has been either totally or partially unemployed for a waiting period of one week. No benefits are payable for the waiting period. No week shall be counted as a week of unemployment for the purposes of this paragraph (d):

(I) Unless it occurs within the benefit year which includes the week with respect to which he claims payment of benefits;

(II) If benefits have been paid with respect thereto;

(III) Unless the individual was eligible for benefits with respect thereto under provisions of sections 8-73-107 to 8-73-112;

(IV) Unless total wages earned for the week are less than the weekly benefit amount;

(e) The individual has during his or her base period been paid wages for insured work equal to not less than forty times such individual's weekly benefit amount or two thousand five hundred dollars, whichever is greater. For the purposes of this paragraph (e), wages shall be counted as “wages for insured work” for benefit purposes with respect to any benefit year only if such benefit year comes subsequent to the date on which the employing unit by whom such wages were paid has satisfied the conditions of sections 8-70-113, 8-76-104, and 8-76-107 with respect to becoming an employer.

(f) His total wages earned for the week are less than his weekly benefit amount;

(g)(I) He or she is actively seeking work. In determining whether the claimant is actively seeking work, the division, taking notice of the customary methods of obtaining work in the claimant's usual occupation, or any occupation for which he or she is reasonably qualified, and the current condition of the labor market, shall consider, but shall not be limited to a consideration of, whether, during said week, the claimant followed a course of action that was reasonably designed to result in his or her prompt reemployment in suitable work.

(II) This paragraph (g) shall not apply to a person determined eligible to receive benefits pursuant to section 8-73-108 (4)(r)(I) for the first fifteen business days after a claim for benefits has been filed if compliance with this paragraph (g) would:

(A) Make it more difficult for the person to escape domestic abuse; or

(B) Unfairly penalize a person who is or has been a victim of domestic abuse or is at further risk of domestic abuse.

(h) He has furnished the division with separation and other reports containing such information deemed necessary by the division to determine his eligibility for benefits, but this provision shall not apply if he proves to the satisfaction of the division that he had good cause for failing to furnish such reports. The eligibility of any individual shall not be affected by the refusal or failure of an employer to furnish reports concerning separation and employment as required by articles 70 to 82 of this title and the regulations pursuant thereto, and the division shall determine the eligibility of such individual upon the basis of such information it may obtain; and any employer who fails or refuses to furnish reports concerning separation and employment shall cease to be an interested party to the separation issue directly related to determinations made in accordance with section 8-73-108 (4) and (5)(e). For each instance of failure to furnish the division with such reports, the employer, unless good cause to the contrary is shown to the satisfaction of the division, may be assessed a penalty of twenty-five dollars, which shall be collected in the same manner as taxes due under articles 70 to 82 of this title.

(i) It is not, in whole or in part, within a period during which the worker is not working due to a disciplinary suspension as provided in the contract of employment;

(j) Such individual is not absent from work due to an authorized and approved voluntary leave of absence.

(2) An individual who has received compensation during the individual's benefit year is required to have worked for an employer as defined in section 8-70-113 since the beginning of such year and to have earned at least two thousand dollars as remuneration for such employment in order to qualify for compensation in the next benefit year.

(3) For the purpose of this subsection (3), “educational institution” includes the Colorado school for the deaf and the blind; except that such term does not include a headstart program that is not a part of a school administered by a board of education because such headstart employees are not subject to the same employment conditions as other employees of the school. Compensation is payable on the basis of services to which sections 8-70-119, 8-70-125, and 8-70-125.5 apply in the same amount, on the same terms, and subject to the same conditions as compensation payable on the basis of other services subject to articles 70 to 82 of this title; except that:

(a) With respect to services in an instructional, research, or principal administrative capacity for an educational institution, compensation shall not be payable based on such services for any week commencing during the period between two successive academic years or terms (or when an agreement provides instead for a similar period between two regular but not successive terms, during such period) to any individual if such individual performs such services in the first of such academic years or terms and if there is a contract or reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms;

(b) With respect to services in any other capacity, for an educational institution compensation payable on the basis of such services shall be denied to any individual for any week which commences during a period between two successive academic years or terms or periods described in paragraph (c) of this subsection (3) if such individual performs such services in the first of such academic years, terms, or periods and there is a reasonable assurance that such individual will perform such services in the second of such academic years, terms, or periods; except that, if compensation is denied to any individual for any week under this paragraph (b) and such individual was not offered, an opportunity to perform such services for the educational institution for the second of such academic years, terms, or periods, such individual shall be entitled to a retroactive payment of the 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 paragraph (b);

(c) With respect to any services described in paragraphs (a) or (b) of this subsection (3), compensation payable on the basis of such services shall be denied 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 if there is a reasonable assurance that such individual will perform such services in the period immediately following such vacation period or holiday recess;

(d) With respect to any services described in paragraph (a) or (b) of this subsection (3), compensation payable on the basis of services in any such capacity shall be denied as specified in paragraphs (a), (b), or (c) of this subsection (3) to any individual who performed such services in an educational institution while in the employ of an educational service agency. For the purpose of this paragraph (d), the term “educational service agency” means a governmental agency or governmental entity, such as that created by the “Boards of Cooperative Services Act of 1965”, article 5 of title 22, C.R.S., which is established and operated exclusively for the purpose of providing such services to one or more educational institutions.

(e) With respect to any services described in paragraph (a) of this subsection (3), compensation payable on the basis of such services shall be denied to any individual for any week during a period of paid or unpaid sabbatical or other voluntary leave provided for in the individual's contract if such individual performs such services in the academic year or term immediately preceding the beginning of sabbatical or other voluntary leave and if there is a contract or reasonable assurance that such individual will perform such services in the academic year or term following the end of the sabbatical or other voluntary leave;

(f) With respect to services to which section 8-70-140 applies, 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 paragraphs (a) to (d) of this subsection (3).

(4)(a) Notwithstanding any other provision in this section, no otherwise eligible individual shall be denied benefits for any week because he is in training with the approval of the division, nor shall such individual be denied benefits by reason of the application of provisions in paragraph (c) of subsection (1) of this section relating to availability for work, the provisions of paragraph (g) of subsection (1) of this section relating to active search for work, or the provisions of section 8-73-108 relating to failure to apply for, or a refusal to accept, suitable work with respect to any week in which he is in training with the approval of the division.

(b) (Deleted by amendment, L.98, p. 89, § 3, effective March 23, 1998.)

(5) Repealed.

(6) Benefits shall not be paid to any individual on the basis of any services, substantially all of which consist of participating in sports or athletic events or training or preparing to so participate, for any week which commences during the period between two successive sport seasons (or similar periods) if such individual performed such services in the first of such seasons (or similar periods) and there is a reasonable assurance that such individual will perform such services in the latter of such seasons (or similar periods).

(7)(a) Benefits shall not be payable on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed, or was lawfully present for purposes of performing such services, or was permanently residing in the United States under color of law at the time such services were performed. For purposes of the “Colorado Employment Security Act”:

(I) An alien shall be considered to be “lawfully admitted for permanent residence” only if the alien has been granted status under section 101 of the “Immigration and Nationality Act”, 8 U.S.C. 1101 (a)(20);

(II) An alien shall be considered to be “lawfully present for purposes of performing services” only if the alien is an alien who possesses work authorization or has been lawfully admitted to temporary residence under section 245 (a) or section 210 of the “Immigration and Nationality Act”, 8 U.S.C. 1255 (a) and 8 U.S.C. 1160, respectively;

(III) An alien shall be considered to be “permanently residing in the United States under color of law” only if the alien is:

(A) An alien admitted as a refugee under section 207 of the “Immigration and Nationality Act”, 8 U.S.C. § 1157, in effect after March 31, 1980;

(B) An alien granted asylum by the attorney general of the United States under section 208 of the “Immigration and Nationality Act”, 8 U.S.C. § 1158;

(C) An alien granted a parole into the United States for an indefinite period under section 212 (d)(5)(B) of the “Immigration and Nationality Act”, 8 U.S.C. § 1182 (d)(5)(B);

(D) An alien granted the status as a conditional entrant refugee under section 203 (a)(7) of the “Immigration and Nationality Act”, 8 U.S.C. § 1153 (a)(7), in effect prior to March 31, 1980; or

(E) An alien who has been formally granted deferred action status by the immigration and naturalization service.

(b) Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits.

(c) In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such individual are not payable because of his alien status shall be made except upon a preponderance of the evidence.

§ 8‑73‑108(5), C.R.S. 2005

(a) An individual who refuses to accept suitable work or refuses a referral to suitable work shall be disqualified from receiving benefits for a period of twenty weeks beginning with the week in which the refusal occurred, and his total benefits shall be reduced by an amount equal to the number of weeks of disqualification multiplied by his weekly benefit amount. The determination of whether or not an individual has refused to accept suitable work or refused to accept a referral to suitable work shall be the responsibility of the division.

(b) The refusal of suitable work or refusal of referral to suitable work at any time after the last separation from employment that occurred prior to the time of filing the initial claim shall be considered in determining the direct and proximate cause of the separation. In determining whether or not any work is suitable for an individual, the degree of risk involved to his health, safety, and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing work in his customary occupation, and the distance of the available local work from his residence shall be considered. Notwithstanding any other provisions of articles 70 to 82 of this title, no work shall be deemed suitable and benefits shall not be denied under articles 70 to 82 of this title to any otherwise eligible individual for refusing to accept new work under any of the following conditions:

(I) If the position offered is vacant due directly to a strike, lockout, or other labor dispute;

(II) If the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality;

(III) If as a condition of being employed the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.

(c) An award shall not be denied to an individual more than once for failure to apply for or to accept the same or a similar position with the same employer.

§ 8‑73‑113, C.R.S. 2005

(1) Notwithstanding any other provisions of articles 70 to 82 of this title, an otherwise eligible individual shall not be denied benefits for any week because he is in training approved under section 236 (a)(1) of the federal “Trade Act of 1974”, as amended, nor shall such individual be denied benefits by reason of leaving work to enter such training, provided the work left is not suitable employment, or because of the application to any such week in training of provisions in this law relating to availability for work, active search for work, or refusal to accept work.

(2) As used in this section, “suitable employment” means, with respect to an individual, work of a substantially equal or higher skill level than the individual's past adversely affected employment, as defined for purposes of the federal “Trade Act of 1974”, as amended, and wages for such work at not less than eighty percent of the individual's average weekly wage, as determined for the purposes of the federal “Trade Act of 1974”, as amended.

Regulations

2.8.1 Statutory References: 8-73-107, 8-73-108 (5)(a)(b)(c), and 8-73-113, C.R.S.

2.8.2 Able to Work. In general, a claimant must be physically and mentally capable of performing the usual duties of his customary occupation or the usual duties of other suitable work for which he is reasonably qualified. The burden of establishing ability to work is on the claimant. However, there shall be no presumption that the claimant is not able to work. In determining whether the claimant is able to work, the Division shall consider the relevant facts and circumstances of the claimant's individual situation.

.1 The Division may request the claimant to furnish, at his own expense, a competent written statement from a licensed practicing physician or a licensed mental health care professional when the claimant's ability to work is in doubt.

.2 The claimant must be able to work all shifts which are customary for his usual occupation or other suitable work for which he is reasonably qualified.

.3 A part-time worker's ability to work shall be determined in accordance with section 2.2 of these regulations.

.4 A claimant engaged in self-employment activities shall have his ability to work determined in accordance with section 2.5 of these regulations.

2.8.3 Available for Work. In general, a claimant shall be considered available for work only if he is ready and willing to accept suitable work. There must be no restrictions, either self-imposed or created by other circumstances, which prevent accepting suitable work. The claimant must accept referral to suitable work or accept an offer of suitable work to avoid being disqualified from receiving benefits in accordance with 8-73-108 (5), C.R.S.

.1 Labor-Market Area. A claimant must offer his services without restriction to the labor-market area to be considered available for work. For the purposes of this section 2.8, the term "labor-market area" shall mean the geographic area in which the claimant can reasonably be expected to seek and find employment.

.2 Absence From State. A claimant who is temporarily absent from the state for reasons other than to seek work pursuant to section 2.1.8 of these regulations is presumed to be not available for work. This presumption may be rebutted by competent evidence in an individual case.

.3 Change of Labor-Market Area. A claimant who relocates to a new labor-market area may be required to expand his work search to include other occupations for which he is reasonably qualified when, in the opinion of the Division, opportunities for securing work in his customary occupation are significantly limited.

.4 Referral to Job Opening. A claimant who cannot be reached for referral to a job opening, after reasonable efforts to contact the person have been made, shall be considered unavailable for work unless good cause for failure to be reachable is shown. For purposes of this subsection 2.8, good cause shall have the meaning set forth in subsection 12.1.8 of these regulations.

.5 Length of Unemployment. As a claimant's duration of unemployment lengthens, prospects for obtaining employment in his customary occupation or other work in a reasonable time may change. Therefore, work that is unsuitable at one point in time may become suitable at another point. To be available for work, a claimant must be ready and willing to accept other work which becomes suitable as his prospects for customary work change. Thus, he may be required to broaden the geographic area in which he will accept work, accept counseling for possible retraining or change in occupation, or seek and accept employment at the prevailing wage in a new occupation.

.6 Incarceration. A claimant who is incarcerated and unable to accept employment under a work release program is not available for work.

.7 Seasonal Worker. A seasonal worker who, outside the seasonal period, is not willing to accept suitable work in a non-seasonal occupation is not available for work.

.8 Self-Employment. A claimant engaged in self-employment activities shall have his availability determined in accordance with section 2.5 of these regulations.

.9 Time or Shift Restriction. A claimant who is unwilling to work the hours of the day or the days of the week which are customary for his usual occupation or other suitable work for which he is reasonably qualified is not available for work.

.10 Transportation. Transportation is the responsibility of the worker. A claimant who is unable to seek or accept suitable work in the labor-market area due to a lack of transportation is not available for work.

.11 Dependent Care. A claimant who elects not to seek or accept suitable work because he must care for a dependent person is not available for work.

.12 School or Training. Except as provided by 8-73-107 (4)(a) and 8-73-113, C.R.S., and section 2.6 of these regulations, a claimant who elects not to seek or accept suitable work because of participation or attendance in school or training is not available for work.

.13 Wage Restriction. A claimant who is unwilling to accept the prevailing wage for the type of work he is seeking in his labor-market area is not available for work.

.14 Part-Time Worker. A part-time worker's availability for work shall be determined in accordance with section 2.2 of these regulations.

2.8.4 Actively Seeking Work. A claimant must make reasonable and diligent efforts to actively seek suitable work unless otherwise relieved of this requirement by virtue of participation in approved training, job attachment, or limited job opportunities pursuant to articles 70 to 82, C.R.S., or these regulations. A claimant who limits his work search solely to positions that are not available in the labor-market area or to positions for which he is not reasonably qualified shall not be considered actively seeking suitable work.

.1 Number of Contacts. The number of employers a claimant must contact each week in order to be considered actively seeking work shall be determined by the Division. In determining the adequacy of work search in terms of the number of job contacts required, the Division shall consider, but not be limited to a consideration of, the employment opportunities in the claimant's labor-market area, the qualifications of the claimant, and the normal practices and customary methods for obtaining work. Failure to make the required number of job contacts may result in a disallowance of benefits.

.2 Record of Job Contacts. A claimant who is required to make an active search for work shall maintain a written record of weekly job contacts on such form as may be prescribed by the Division. The claimant must provide a copy of said record, or any portion thereof, to the Division at its request. A claimant who does not provide such information, except for good cause shown, may be determined to have not met the requirement to actively seek work pursuant to 8-73-107 (1)(g) for the week(s) covered by the request. Good cause for failing to furnish the requested information shall have the meaning set forth in subsection 12.1.8 of these regulations.

.3 Seasonal Worker. A claimant who is seasonally employed is not relieved of the responsibility to seek work.

.4 Incarcerated Worker. A claimant who is incarcerated and who is unable to seek work is not actively seeking work.

.5 Limited Job Opportunities. If, due to economic conditions within the labor-market area, the Division determines that any effort to search for work would be fruitless for the claimant and burdensome to employers, then registering for work with the Division shall constitute an active search for work.

.6 Part-Time Worker. Whether a part-time worker is actively seeking work shall be determined in accordance with section 2.2 of these regulations.

.7 Self-Employment. Whether an individual engaged in self- employment activities is actively seeking work shall be determined in accordance with section 2.5 of these regulations.

2.8.5 Reemployment Services. A claimant who fails to participate in reemployment services after having been determined likely to exhaust regular benefits and to need such services pursuant to a profiling system established by the director of the Division shall be ineligible to receive benefits with respect to any week unless it is determined that:

.1 The individual has completed such services; or

.2 There is justifiable cause for the claimant's failure to participate in such services.

Cases

Eligibility in General

Industrial Commission v. Bennett, 166 Colo. 101, 441 P.2d 648 (1968)

A claimant indicated she was not attending school on her application for unemployment, but was attending a university.  Although the claimant testified she would have quit school if she had been offered a job, the court upheld the Commission's determination that the claimant had restricted her availability for work by attending school and that the claimant made false representations on her application.  The court also held that a claimant's school attendance is a necessary inquiry regarding eligibility.

Industrial Commission v. Redmond, 183 Colo. 14, 514 P.2d 623 (Colo. 1973)

The essential question is whether a claimant has so restricted his or her availability for suitable work or restricted his or her search for work that the eligibility requirements of the statute have not been satisfied.  In this case, the claimant customarily worked part-time, and was seeking part-time employment while attending school full-time.  The case was remanded to the Commission for further findings regarding the claimant's eligibility.

Couchman v. Industrial Commission, 33 Colo. App. 116, 515 P.2d 636 (Colo. App. 1973)

Availability for employment must be determined within the context of each case.  A claimant was restricted to working evening shifts because of his daytime school attendance, but he had worked evening shifts for several years in his previous employment and was seeking employment in that capacity while attending school.  The court remanded the case for a determination of "whether or not the second shift job market provided sufficient job opportunities and reasonable prospects of suitable work for claimant's employment."

Medina v. Industrial Commission, 38 Colo. App. 256, 554 P.2d 1360 (1976)

It is the claimant’s burden to establish his or her eligibility for unemployment benefits.  Here, a claimant who formerly worked full-time but was then limited to part-time jobs that did not involve standing was not eligible for unemployment benefits.

Denver Post, Inc. v. Dept. of Labor and Employment, 199 Colo. 466, 610 P.2d 1075 (1980)

Determination of whether the claimant is able, available, and actively seeking work must be made within the context of the factual situation in each individual case.  Also, a separation may be partial or total, but it must involve some change in the claimant’s employment status.  Here, the lack of work for substitute printers and stenographers in a particular week constituted a partial separation from employment.

Bartholomay v. Industrial Commission, 642 P.2d 50 (Colo. App. 1982)

"[W]here an unemployment compensation claimant is, for health reasons, unable to perform such claimant's 'normal' work for a period of time, the claimant may nevertheless be eligible for benefits if the claimant is able to perform and is available for other suitable work."

Pueblo School District No. 60 v. Martinez, 749 P.2d 1005 (Colo. App. 1987)

A claimant who is placed on disciplinary suspension for an indeterminate period, rather than a specific length of time, is not barred from the receipt of unemployment benefits as there is no guarantee the claimant will return to work.

McClaflin v. Industrial Claim Appeals Office, 126 P.3d 288 (Colo. App. 2005), cert. granted January 23, 2006

A claimant was placed on medical work restrictions, but her employer did not provide her with any work hours.  The claimant did not seek other work in part because her union agreement prohibited her from seeking or accepting other work, and also would have jeopardized her workers' compensation claim.  The court held that the claimant was not excused from the statutory eligibility requirement of actively seeking work.

Eligibility for Non-U.S. Citizens

Duenas-Rodriguez v. Industrial Commission, 199 Colo. 95, 606 P.2d 437 (1980)

An illegal alien is not eligible to receive unemployment benefits because illegal aliens have no constitutional right to work and are legally unavailable for work.

Industrial Commission v. Arteaga, 735 P.2d 473 (Colo. 1987)

"[C]laimants who had filed petitions for adjustment of status based upon their marriage to United States citizens and who had received work authorization from the INS, were persons 'permanently residing in the United States under color of law,'" and thus were eligible to receive unemployment benefits.

Division of Employment and Training v. Turynski, 735 P.2d 469 (Colo. 1987)

Claimants who had applied for political asylum were permanently residing in the United States under color of law, and thus eligible to receive unemployment benefits, even though their applications for asylum were still pending.

Sandoval v. Colorado Division of Employment, 757 P.2d 1105 (Colo. App. 1988)

A claimant did not have work authorization during his base period but had at least one application for lawful permanent residency pending during that time.  The court held that lack of work authorization is only one factor in the determination of whether the claimant is permanently residing in the United States under color of law, and found the claimant was eligible for unemployment benefits.

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