Code of Virginia

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Code of Virginia
Title 60.2. Unemployment Compensation
Chapter 6. Benefits
11/29/2022

Article 4. Eligibility Criteria.

§ 60.2-612. Benefit eligibility conditions.

A. An unemployed individual shall be eligible to receive benefits for any week only if the Commission finds that:

1. He has, in the highest two quarters of earnings within his base period, been paid wages in employment for employers that are equal to not less than the lowest amount appearing in Column A of the "Benefit Table" appearing in § 60.2-602 on the line which extends through Division C and on which in Column B of the "Benefit Table" appears his weekly benefit amount. Such wages shall be earned in not less than two quarters.

2. a. His total or partial unemployment is not due to a labor dispute in active progress or to shutdown or start-up operations caused by such dispute which exists (i) at the factory, establishment, or other premises, including a vessel, at which he is or was last employed, or (ii) at a factory, establishment or other premises, including a vessel, either within or without this Commonwealth, which (a) is owned or operated by the same employing unit which owns or operates the premises at which he is or was last employed and (b) supplies materials or services necessary to the continued and usual operation of the premises at which he is or was last employed. This subdivision shall not apply if it is shown to the satisfaction of the Commission that:

(1) He is not participating in or financing or directly interested in the labor dispute; and

(2) He does not belong to a grade or class of workers of which, immediately before the commencement of the labor dispute, there were members employed at the premises, including a vessel, at which the labor dispute occurs, any of whom are participating in or financing or directly interested in the dispute.

b. If separate branches of work which are commonly conducted as separate businesses at separate premises are conducted in separate departments of the same premises, each such department shall, for the purposes of this subdivision, be deemed to be a separate factory, establishment or other premises. Membership in a union, or the payment of regular dues to a bona fide labor organization, however, shall not alone constitute financing a labor dispute.

3. He is not receiving, has not received or is not seeking unemployment benefits under an unemployment compensation law of any other state or of the United States; however, if the appropriate agency of such other state or of the United States finally determines that he is not entitled to such unemployment benefits, this subdivision shall not apply.

4. He is not on a bona fide paid vacation. If an individual is paid vacation pay for any week in an amount less than the individual's weekly benefit amount his eligibility for benefits shall be computed under the provisions of § 60.2-603.

5. He has registered for work and thereafter has continued to report at an employment office in accordance with such regulations as the Commission may prescribe. The Commission may, by regulation, waive or alter either or both of the requirements of this subdivision for certain types of cases when it finds that compliance with such requirements would be oppressive, or would be inconsistent with the purposes of this title.

6. He has made a claim for benefits in accordance with regulations the Commission may prescribe.

7. a. He is able to work, is available for work, and is actively seeking and unable to obtain suitable work. Every claimant who is totally unemployed shall report to the Commission the names of employers contacted each week in his effort to obtain work. This information may be subject to employer verification by the Commission through a program designed for that purpose. The Commission may determine that registration by a claimant with the Virginia State Job Service may constitute a valid employer contact and satisfy the search for work requirement of this subsection in labor market areas where job opportunities are limited. The Commission may determine that an individual, whose usual and customary means of soliciting work in his occupation is through contact with a single hiring hall which makes contacts with multiple employers on behalf of the claimant, meets the requirement that he be actively seeking and unable to obtain suitable work by contacting that hiring hall alone. In areas of high unemployment, as determined by the Commission, the Commission has the authority to adjust the requirement that he be actively seeking and unable to obtain suitable work.

b. An individual who leaves the normal labor market area of the individual for the major portion of any week is presumed to be unavailable for work within the meaning of this section. This presumption may be overcome if the individual establishes to the satisfaction of the Commission that the individual has conducted a bona fide search for work and has been reasonably accessible to suitable work in the labor market area in which the individual spent the major portion of the week to which the presumption applies.

c. An individual whose type of work is such that it is performed by individuals working two or more shifts in a 24-hour period shall not be deemed unavailable for work if the individual is currently enrolled in one or more classes of education related to employment or is continuing in a certificate or degree program at an institution of higher education, provided that the enrollment would only limit the individual's availability for one shift and the individual is otherwise available to work any of the other shifts.

8. He has given notice of resignation to his employer and the employer subsequently made the termination of employment effective prior to the date of termination as given in the notice, but in no case shall unemployment compensation benefits awarded under this subdivision exceed two weeks; provided, that the claimant could not establish good cause for leaving work pursuant to § 60.2-618 and was not discharged for misconduct as provided in § 60.2-618.

9. Beginning January 6, 1991, he has served a waiting period of one week during which he was eligible for benefits under this section in all other respects and has not received benefits, except that only one waiting week shall be required of such individual within any benefit year. For claims filed effective November 28, 1999, and after, this requirement shall be waived for any individual whose unemployment was caused by his employer terminating operations, closing its business or declaring bankruptcy without paying the final wages earned as required by § 40.1-29 of the Code of Virginia. Notwithstanding any other provision of this title, if an employer who terminates operations, closes its business or declares bankruptcy pays an individual his final wages after the period of time prescribed by § 40.1-29 of the Code of Virginia, such payment shall not be offset against the benefits the individual was otherwise entitled to receive and shall not, under any circumstances, cause such individual to be declared overpaid benefits.

10. He is not imprisoned or confined in jail.

11. He participates in reemployment services, such as job search assistance services, if he has been determined to be likely to exhaust regular benefits and need reemployment services pursuant to a profiling system established by the Commission, unless the Commission determines that (i) such claimant has completed such services or (ii) there is good cause for such claimant's failure to participate in such services.

B. Prior to any individual receiving benefits under this chapter, the Commission shall conduct an incarceration check and an employment identification check to verify the status of the unemployed individual seeking a claim for benefits.

Code 1950, § 60-46; 1954, c. 203; 1956, c. 440; 1962, c. 270; 1966, c. 30; 1968, c. 9; 1968, c. 738, § 60.1-52; 1970, c. 104; 1974, c. 264; 1976, c. 708; 1977, c. 445; 1980, c. 463; 1981, c. 606; 1982, c. 265; 1983, c. 359; 1984, c. 458; 1985, c. 563; 1986, c. 480; 1988, c. 521; 1990, c. 908; 1993, c. 249; 1995, c. 436; 2000, c. 573; 2004, c. 496; 2022, c. 668.

§ 60.2-612.1. (Effective January 1, 2023) Program integrity.

A. In order to verify that an individual is eligible to receive benefits, the Commission shall conduct all mandatory and recommended program integrity activities as identified by the U.S. Department of Labor Employment and Training Administration and the U.S. Department of Labor Office of Inspector General.

B. The Commission shall perform a full eligibility review of suspicious or potentially improper claims. In determining if a claim is suspicious or potentially improper, the Commission shall consider the factors utilized by the Integrity Data Hub and any additional factors that may be appropriate, including commonalities in physical addresses, mailing addresses, internet protocol addresses, email addresses, multi-factor authentication, and bank accounts.

C. The Commission shall recover any improper overpayment of benefits to the fullest extent authorized by this title and federal law.

D. The Department of Social Services, the Department of Medical Assistance Services, and the Department of Housing and Community Development, upon receipt of notification that an individual enrolled in any of such department's public assistance programs has become employed, shall notify the Commission of such fact in order for the Commission to determine the individual's eligibility for benefits.

E. The Commission may enter into a memorandum of understanding with any state agency necessary to implement the provisions of this section.

F. The Commission shall report by December 1 of each year to the Commission on Unemployment Compensation addressing the implementation and enforcement of the provisions of this section. The report shall include:

1. The Commission's general program integrity processes, including tools, resources, and databases utilized, to the extent that sharing the information does not jeopardize program integrity measures;

2. A description of efforts to identify, prevent, and recover improper overpayments of benefits and fraudulent payments and measures being taken to improve such efforts;

3. The type and amount of improper payments detected retroactively;

4. The type and amount of improper payments prevented;

5. Moneys saved in preventing improper overpayments and, if any, in recouping improper overpayments; and

6. An explanation for the nonrecovery of overpayments, including the application of any allowable recovery exceptions.

2022, c. 740.

§ 60.2-613. Benefits not denied to individuals in training with approval of Commission.

A. No otherwise eligible individual shall be denied benefits for any week because he is in training with the approval of the Commission, including training under § 134 of the Workforce Investment Act, nor shall such individual be denied benefits for any week in which he is in training with the approval of the Commission, including training under § 134 of the Workforce Investment Act, by reason of the application of the provisions in subdivision A 7 of § 60.2-612 relating to availability for work, or the provisions of subdivision 3 of § 60.2-618 relating to failure to apply for, or a refusal to accept, suitable work.

B. Notwithstanding any other provisions of this chapter, no otherwise eligible individual shall be denied benefits for any week because he is in training approved under § 2296 of the Trade Act (19 U.S.C. § 2101 et seq.), 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 (or any applicable federal unemployment compensation law), relating to availability for work, active search for work, or refusal to accept work.

C. For purposes of 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 Trade Act, 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 Trade Act.

1971, Ex. Sess., c. 235, § 60.1-52.1; 1982, c. 237; 1984, c. 204; 1985, c. 152; 1986, c. 480; 1995, c. 436; 2000, c. 687; 2022, c. 668.

§ 60.2-614. Service required during immediately preceding benefit year in which individual received benefits.

No individual may receive benefits in a benefit year unless, subsequent to the beginning of the immediately preceding benefit year during which he received benefits, he performed service for an employer as defined in § 60.2-210 for remuneration (i) during thirty days, whether or not such days were consecutive, or (ii) for 240 hours, and subsequently became totally or partially separated from such employment.

1971, Ex. Sess., c. 235, § 60.1-52.2; 1977, c. 445; 1981, c. 369; 1984, c. 458; 1986, c. 480; 1997, c. 202.

§ 60.2-615. Benefits based on employment by state or political subdivision, certain hospitals, educational institutions and charitable, etc., organizations.

Benefits based on service in employment defined in subsection A of § 60.2-213 shall be payable in the same amount on the same terms and subject to the same conditions as benefits payable on the basis of other service subject to this title, except that:

A. 1. Benefits based on service in an instructional, research, or principal administrative capacity for an educational institution shall not be paid to an individual for any week of unemployment commencing during the period between two successive academic years or terms, or during a similar period between two regular but not successive terms, or during a period of paid sabbatical leave provided for in the individual's contract, if the individual performs such services in the first of such academic years or terms and if there is a contract or a 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.

2. The provisions of this subsection relating to the denial of benefits shall apply to an individual who performs such services on a part-time or substitute basis.

B. 1. Benefits based on service in any capacity, other than an instructional, research, or principal administrative capacity, for an educational institution shall not be paid 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.

2. The provisions of this subsection relating to the denial of benefits shall apply to an individual who performs such services on a part-time or substitute basis.

3. If compensation is denied to any individual for any week which occurs during the period between academic years or terms under this subsection 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 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 subsection.

C. Benefits based on services performed in an educational institution while employed by an educational service agency shall not be payable to any individual who provided such services under the same circumstances and subject to the same terms and conditions as described in subsections A, B and E of this section. For purposes of this subsection "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.

D. Benefits based on services provided to or on behalf of an educational institution while employed by a governmental entity or nonprofit organization shall not be payable to any individual who provided such services under the same circumstances and subject to the same terms and conditions as described in subsections A, B, C and E of this section.

E. For services described in subsections A and B of this section, 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 there is a reasonable assurance that such individual will perform such services in the period immediately following such vacation period or holiday recess.

1971, Ex. Sess., c. 235, § 60.1-52.3; 1977, c. 330; 1979, c. 652; 1981, c. 328; 1983, c. 14; 1984, cc. 204, 458; 1985, c. 152; 1986, c. 480.

§ 60.2-616. Benefits based on services in connection with sports.

Benefits based on services, substantially all of which consist of participating in sports or athletic events or training or preparing to so participate, shall not be paid to any individual for any week of unemployment 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 later of such seasons, or similar periods.

1977, c. 330, § 60.1-52.4:1; 1986, c. 480.

§ 60.2-617. Benefits denied to certain aliens.

A. Benefits shall not be paid on the basis of services performed by an alien unless such individual was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services, or was permanently and lawfully residing in the United States under color of law at the time such services were performed. The provisions of this subsection shall include aliens who were lawfully present in the United States as a result of the application of the provisions of § 1153 (a) (7) or § 1182 (d) (5) of the Immigration and Nationality Act (8 U.S.C. § 1101 et seq.). Additionally, any modifications to the provisions of § 3304 (a) (14) of the Federal Unemployment Tax Act (26 U.S.C. § 3301 et seq.) which specify other conditions or other effective dates than stated herein for the denial of benefits based on services performed by aliens and which modifications are required to be implemented under state law as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act, shall be deemed applicable under the provisions of this section.

B. Any data or information required of individuals claiming 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 claim 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.

1977, c. 330, § 60.1-52.5:1; 1986, c. 480.

§ 60.2-618. Disqualification for benefits.

An individual shall be disqualified for benefits upon separation from the last employing unit for whom he has worked 30 days or 240 hours or from any subsequent employing unit:

1. For any week benefits are claimed until he has performed services for an employer (i) during 30 days, whether or not such days are consecutive, or (ii) for 240 hours, and subsequently becomes totally or partially separated from such employment, if the Commission finds such individual is unemployed because he left work voluntarily without good cause.

If (a) at the time of commencing employment with such employing unit an individual is enrolled in an accredited academic program of study provided by an institution of higher education for students that have been awarded a baccalaureate degree, which academic program culminates in the awarding of a master's, doctoral, or professional degree; (b) the individual's employment with such employing unit commenced and ended during the period between spring and fall semesters of the academic program in which the individual is enrolled; and (c) the individual returned to such academic program following his separation from such employing unit, there shall be a rebuttable presumption that the individual left work voluntarily.

As used in this chapter, "good cause" shall not include (1) voluntarily leaving work with an employer to become self-employed or (2) voluntarily leaving work with an employer to accompany or to join his or her spouse in a new locality, except where an individual leaves employment to accompany a spouse to the location of the spouse's new duty assignment if (A) the spouse is on active duty in the military or naval services of the United States; (B) the spouse's relocation to a new military-related assignment is pursuant to a permanent change of station order; (C) the location of the spouse's new duty assignment is not readily accessible from the individual's place of employment; and (D) except for members of the Virginia National Guard relocating to a new assignment within the Commonwealth, the spouse's new duty assignment is located in a state that, pursuant to statute, does not deem a person accompanying a military spouse as a person leaving work voluntarily without good cause. An individual shall not be deemed to have voluntarily left work solely because the separation was in accordance with a seniority-based policy.

2. a. For any week benefits are claimed until he has performed services for an employer (i) during 30 days, whether or not such days are consecutive, or (ii) for 240 hours, and subsequently becomes totally or partially separated from such employment, if the Commission finds such individual is unemployed because he has been discharged for misconduct connected with his work.

b. For the purpose of this subdivision, "misconduct" includes, but shall not be limited to:

(1) An employee's confirmed positive test for a nonprescribed controlled substance, identified as such in Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1, where such test was conducted at the direction of his employer in conjunction with the employer's administration and enforcement of a known workplace drug policy. Such test shall have been performed, and a sample collected, in accordance with scientifically recognized standards by a laboratory accredited by the United States Department of Health and Human Services, or the College of American Pathology, or the American Association for Clinical Chemistry, or the equivalent, or shall have been a United States Department of Transportation-qualified drug screen conducted in accordance with the employer's bona fide drug policy. The Commission may consider evidence of mitigating circumstances in determining whether misconduct occurred.

(2) An employee's intentionally false or misleading statement of a material nature concerning past criminal convictions made in a written job application furnished to the employer, where such statement was a basis for the termination and the employer terminated the employee promptly upon the discovery thereof. The Commission may consider evidence of mitigating circumstances in determining whether misconduct occurred.

(3) A willful and deliberate violation of a standard or regulation of the Commonwealth, by an employee of an employer licensed or certified by the Commonwealth, which violation would cause the employer to be sanctioned or have its license or certification suspended by the Commonwealth. The Commission may consider evidence of mitigating circumstances in determining whether misconduct occurred.

(4) Chronic absenteeism or tardiness in deliberate violation of a known policy of the employer or one or more unapproved absences following a written reprimand or warning relating to more than one unapproved absence. The Commission may consider evidence of mitigating circumstances in determining whether misconduct occurred.

(5) An employee's loss of or failure to renew a license or certification that is a requisite of the position held by the employee, provided the employer is not at fault for the employee's loss of or failure to renew the license or certification. The Commission may consider evidence of mitigating circumstances in determining whether misconduct occurred.

3. a. If it is determined by the Commission that such individual has failed, without good cause, either to apply for available, suitable work when so directed by the employment office or the Commission or to accept suitable work when offered him. The disqualification shall commence with the week in which such failure occurred, and shall continue for the period of unemployment next ensuing until he has performed services for an employer (i) during 30 days, whether or not such days are consecutive, or (ii) for 240 hours, and subsequently becomes totally or partially separated from such employment.

b. In determining whether or not any work is suitable for an individual, the Commission shall consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience, his length of unemployment and the accessibility of the available work from his residence.

c. No work shall be deemed suitable and benefits shall not be denied under this title to any otherwise eligible individual for refusing to accept new work under any of the following conditions:

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

(2) 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; or

(3) 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.

d. No individual shall be qualified for benefits during any week that such individual, in connection with an offer of suitable work, has a confirmed positive test for a nonprescribed controlled substance, identified as such in Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1, if the test is required as a condition of employment and (i) performed, and a sample is collected, in accordance with scientifically recognized standards by a laboratory accredited by the United States Department of Health and Human Services, or the College of American Pathology, or the American Association for Clinical Chemistry, or the equivalent, or (ii) a United States Department of Transportation-qualified drug screen conducted in accordance with the employer's bona fide drug policy. The disqualification shall commence with the week in which such a test was conducted, and shall continue for the period of unemployment next ensuing until he has performed services for an employer (i) during 30 days, whether or not such days are consecutive, or (ii) for 240 hours, and subsequently becomes totally or partially separated from such employment.

4. For 52 weeks, beginning with the date of the determination or decision, if the Commission finds that such individual, within 36 calendar months immediately preceding such determination or decision, has made a false statement or representation knowing it to be false, or has knowingly failed to disclose a material fact, to obtain or increase any benefit or payment under this title, the unemployment compensation of any other state, or any other program of the federal government which is administered in any way under this title, either for himself or any other person. Overpayments that have been fraudulently obtained and any penalty assessed against the individual pursuant to § 60.2-636 shall be recoverable as provided in § 60.2-633.

5. If such separation arose as a result of an unlawful act which resulted in a conviction and after his release from prison or jail until he has performed services for an employer for (i) 30 days, whether or not such days are consecutive, or (ii) 240 hours, and subsequently becomes totally or partially separated from such employment.

6. If such separation arose as a condition of the individual's parole or release from a custodial or penal institution and such individual was participating in the community corrections alternative program pursuant to § 19.2-316.4.

Code 1950, § 60-47; 1952, c. 184; 1954, c. 203; 1956, c. 440; 1960, c. 136; 1962, c. 12; 1966, c. 30; 1968, c. 738, § 60.1-58; 1972, c. 764; 1974, c. 466; 1977, c. 286; 1979, cc. 675, 681; 1981, c. 251; 1982, cc. 319, 363; 1983, c. 559; 1984, c. 458; 1986, c. 480; 1991, c. 296; 1993, c. 249; 1996, cc. 175, 182, 194, 199; 1997, c. 202; 1998, c. 241; 1999, c. 919; 2004, cc. 525, 977; 2005, c. 464; 2008, c. 719; 2009, c. 878; 2013, cc. 175, 771; 2014, cc. 201, 442; 2019, c. 618.