TRA and disaster claims filed for incapacitated or deceased workers

U.S. Department of Labor
Employment and Training Administration
Washington, D.C. 20210
Classification: TRA
Correspondence symbol: TEUMI
Issue date: June 10, 1991
Rescissions: None
Expiration date: June 30, 1992
Directive: UNEMPLOYMENT INSURANCE PROGRAM LETTER NO. 29-91
To: ALL STATE EMPLOYMENT SECURITY AGENCIES
From: DONALD J. KULICK, Administrator for Regional Management
Subject: Trade Readjustment Allowances (TRA) and Disaster Unemployment Assistance (DUA) Filing Requirements for Incapacitated or Deceased Claimants

1. Purpose To inform the States and cooperating State Employment Security Agencies (SESAs) about supplemental operating instructions involving the taking of TRA or DUA claims filed by an authorized legal representative of an incapacitated or deceased claimant, the issuance of determinations of entitlement on such claims, and, if appropriate, the making of payments on such claims.

2. References Chapter 2 of Title II of the Trade Act of 1974, as amended; Section 410 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (P.L. 100-707); Trade Adjustment Assistance program regulations at 20 CFR Part 617; and DUA program regulations at 20 CFR Part 625.

3. Background Section 231(a) of the Trade Act of 1974 provides for the payment of TRA to an adversely affected worker covered by a certification who files for such allowance for a week of unemployment if certain eligibility requirements are met. In the past the Department has literally interpreted the TRA filing requirement to mean that only the adversely affected worker, not an authorized legal representative, could file for TRA benefits. Consequently, claims filed by an authorized legal representative for retroactive weeks of TRA eligibility were denied because such claim did not meet the requirements of Section 231(a) of the Act.

4. Changes to the Operating Instructions The Department has reviewed its interpretation regarding the filing of TRA claims and the payment of TRA benefits to an authorized legal representative of the claimant. The Department now interprets the meaning of Section 231(a) of the Act to permit the filing of TRA claims (and the payment of TRA for eligible weeks) by an authorized legal representative of the claimant. The Department has included the DUA program in its new interpretation because the issues involved in the DUA program closely parallel those in the payment of TRA.

   Two questions are appropriate in resolving the issue:

   1. Who has the legal authority to file a TRA or a DUA claim?

   2. May a claimant be determined entitled and eligible for TRA or DUA benefits if such claim is filed by an authorized legal representative?

   The right to file a claim for TRA or DUA benefits cannot be denied to any individual, even if the individual is filing through an authorized legal representative, including the executor/executrix of the estate or an authorized legal representative filing on behalf of a claimant who may have been declared incompetent or incapacitated by the appropriate legal forum. The issue to be addressed is whether to approve such claim, thereby granting or denying TRA or DUA benefits to an otherwise eligible claimant through the authorized legal representative.

   The status of an authorized legal representative is governed by the laws of each State. Accordingly, a TRA or DUA claim filed on behalf of an incapacitated or a deceased claimant may be filed by an individual who, under the laws of the applicable State, has the status of an authorized legal representative of the incapacitated or deceased claimant. In such a case, the legal representative of the claimant is authorized to file for TRA or DUA benefits under Section 231(a) of the Trade Act for TRA and 20 CFR 625.8 for DUA regardless of the applicable State unemployment insurance (UI) law filing requirements. The TRA and DUA filing requirements of Section 231(a) of the Trade Act of 1974 and 20 CFR 625.8 are not affected by any filing requirement contained in State UI law.

   A claim for TRA or DUA benefits shall be adjudicated according to the applicable provisions of the Federal law and regulations referenced in Section 2 of this directive after such claim has been filed by either a claimant or the claimant's authorized legal representative. The only issue to consider is whether the claimant met the eligibility requirements during the period following the separation from adversely affected employment (TRA) or unemployment caused by a major disaster (DUA) and before the event leading to the establishment of the authorized legal representative status (hereafter referred to as the event).

   If the claimant met the TRA or DUA qualifying requirements and the weekly eligibility requirements after separation from employment and prior to the event, TRA or DUA shall be paid to the applicant for the week(s) that the claimant met the TRA or DUA eligibility requirements. As a condition for retroactive TRA or DUA payment to the authorized legal representative of the claimant or the estate, the SESA shall request some objective evidence about the claimant's unemployment, ableness for employment, and availability for employment during each week claimed. SESAs are in the best position to determine the objective evidence necessary to adjudicate such claims.

   Eligibility for retroactive weeks relates back to the claimant's situation with respect to each such week, and on a weekly basis, such eligibility is or is not established. Any eligibility established (or not established), as determined at the conclusion of each such week, is not altered by the occurrence of subsequent events, such as death or incapacity, which may affect eligibility to future benefits. Furthermore, the fact that determinations with respect to the retroactive weeks are made after the event does not alter the claimant's eligibility to benefits for any retroactive weeks in which the claimant met the TRA or DUA eligibility requirements prior to the event.

5. Action Required Administrators are requested to:

   a. Distribute this information to appropriate staff; and

   b. Review their records and issue redeterminations, consistent with State law redetermination authority as provided in 20 CFR 617.50 and .51 for TRA and 20 CFR 625.9 and .10 for DUA in cases where a denial of TRA or DUA benefits was issued based under previous interpretation of the filing requirements for TRA or DUA claims.

6. Inquiries SESAs are to direct all inquiries to the appropriate ETA Regional Office.