Calef v. Employment Department

“An individual shall be eligible to receive a payment of disaster unemployment assistance with respect to a week of unemployment if: (i) the individual is not eligible for compensation (as defined in § 625.2(d)) for such week under any other Federal or State law, except that an individual determined ineligible because of the receipt of disqualifying income shall be considered eligible for such compensation." 20 CFR section 625.4(i).

Petitioner applied for pandemic unemployment assistance and claimed benefits for a period of 50 weeks. After the OED denied and the Employment Appeals Board (“EAB”) upheld the OED’s decision, petitioner brought a claim for judicial review. Petitioner first assigned error to the application of eligibility requirements  and argued that the EAB unlawfully added eligibility requirements to the CARES Act when it applied 20 CFR 625.4 to pandemic unemployment eligibility determinations. OED argued that 20 CFR section 625 applies to the CARES Act vis-à-vis section 2102(h) of the Act. The first part of eligibility determination is whether the person is a  “covered individual," starting with employment status. A claimant must be “unemployed” to be eligible for unemployment benefits. Teledyne Wah Chang Albany v. Employment Div., 302 Or 186, 189, 728 P2d 26 (1986) (en banc); Cook v. Employment Div., 47 Or App 437, 442 n 4, 614 P2d 1193 (1980). To be considered “unemployed” a person must make less during a week from any employment than they would receive in unemployment benefits. The Court found that made between $275 and $300 a week and her weekly benefit was $172. Further, a claimant that is “not eligible” is considered "eligible" and is not "a covered individual" under the CARES Act. The court held EAB did not err in denying petitioner's application for pandemic unemployment assistance. Petitioner argued in his second, third, and fourth assignments of error that EAB made findings not supported by the record and failed to consider certain evidence. The court found EAB’s findings were supported by substantial evidence in the record and EAB adequately explained why, for the purposes of deter-mining pandemic unemployment eligibility. AFFIRMED.