NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - CAPABILITY OF EMPLOYMENT - CASE NO. 6

Here is a complete copy of the applicable statute:

" Sec. 591. Eligibility for benefits.

1. Unemployment. Benefits, except as provided in section five hundred ninety-one-a of this title, shall be paid only to a claimant who is totally unemployed and who is unable to engage in his usual employment or in any other for which he is reasonably fitted by training and experience. A claimant who is receiving benefits under this article shall not be denied such benefits pursuant to this subdivision or to subdivision two of this section because of such claimant`s service on a grand or petit jury of any state or of the United States. .

Subd.1 as amended by L. 1981, Ch. 446 effective July 7, 1981 and L. 1994, Ch. 596 effective January 1, 1995. In effect until December 7, 2002.

2. Availability and capability. Except as provided in section five hundred ninety-one-a of this title, no benefits shall be payable to any claimant who is not capable of work or who is not ready, willing and able to work in his usual employment or in any other for which he is reasonably fitted by training and experience.

Subd.2 as amended by L. 1994, Ch. 596, effective January 1, 1995. In effect until December 7, 2002.

3. Vacation period or holiday. (a) No benefits shall be payable to a claimant for any day during a paid vacation period, or for a paid holiday, nor shall any such day be considered a day of total unemployment under section five hundred twenty-two of this article.

(b) The term "vacation period", as used in this subdivision, means the time designated for vacation purposes in accordance with the collective bargaining agreement or the employment contract or by the employer and the claimant, his union, or his representative. If either the collective bargaining agreement or the employment contract is silent as to such time, or if there be no collective bargaining agreement or employment contract, then the time so designated in writing and announced to the employees in advance by the employer is to be considered such vacation period.

(c) A paid vacation period or a paid holiday is a vacation period or a holiday for which a claimant is given a payment or allowance not later than thirty days thereafter, directly by his employer or through a fund, trustee, custodian or like medium provided the amount thereof has been contributed solely by the employer on behalf of the claimant and the amount so contributed by the employer is paid over in full to the claimant without any deductions other than those required by law, even if such payment or allowance be deemed to be remuneration for prior services rendered as an accrued contractual right, and irrespective of whether the employment has or has not been terminated.

(d) Any agreement expressed or implied by a claimant or by his union or other representative to a plant or department shut down for vacation purposes is not of itself to be considered either a withdrawal by such employee from the labor market during the time of such vacation shut down or to render him unavailable for employment during the time of such vacation shut down.

Subd.3 as amended by L. 1963, Ch. 794 effective April 26, 1963.

4. (a) An unemployed individual shall be eligible to receive benefits with respect to any week only if such individual participates in reemployment services, such as job search assistance services, available under any state or federal law, if the individual has been determined to be likely to exhaust regular benefits and needs reemployment services pursuant to a profiling system established by the commissioner, unless the commissioner determines that:

(i) the individual has completed such services; or

(ii) there is justifiable cause for the claimant`s failure to participate in such services.

(b) Such profiling system shall be established pursuant to a plan of the department which shall include, but not be limited to:

(i) specification of the profiling methodology, including factors used to determine a claimant`s required participation in reemployment services and the statistical relationship of such factors to the exhaustion of benefits by certain claimants;

(ii) standards to be used to insure that all claimants are uniformly evaluated against the profiling criteria;

(iii) a description of criteria to be used to make assignments to basic reemployment services offered;

(iv) procedures for notification of the right of appeal and for appeal by a claimant of the profiling assessment and referral of the department;

(v) an evaluation of the extent to which reemployment services are available throughout the state and accessible to claimants;

(vi) a demonstration of efforts by the department to coordinate with the local providers offering reemployment services, to avoid duplication of services among providers offering similar reemployment services to the same participant group;

(vii) policies and procedures for referrals to reemployment services, including referrals to providers other than the department; and (viii) guidelines governing the extent to which education and skills or occupational training shall be offered.

(c) The department shall, at a time and in a manner consistent with federal requirements, submit a report to the temporary president of the senate and the speaker of the assembly on the profiling system authorized herein except that such report:

(i) shall be submitted to the temporary president of the senate and the speaker of the assembly no later than September first, nineteen hundred ninety-five and annually thereafter, and

(ii) shall include data on the number of individuals profiled and the number of profiled individuals exhausting benefits as well as a description of the service or services provided to profiled individuals and the number of individuals referred for reemployment services during the program year ending the preceding June thirtieth.

Subd.4 as added by L. 1994, Ch. 586 effective October 1, 1994.

5. Maximum combined payments. If a claimant is receiving benefits pursuant to subdivision six of section fifteen of the workers` compensation law, the unemployment benefits to which a claimant may be entitled pursuant to this article shall be limited to the difference between the amount of workers` compensation benefits and one hundred percent of the claimant`s average weekly wage.

Subd.5 as added by L. 1996, Ch. 635, effective September 10, 1996.

§591 as amended by L. 1953, Ch. 720, effective May 4, 1953."