DIRECTIVE	:	UNEMPLOYMENT INSURANCE PROGRAM LETTER NO. 22-97
TO	:	ALL STATE EMPLOYMENT SECURITY AGENCIES
FROM	:	GRACE A. KILBANE Director Unemployment Insurance Service
SUBJECT	:	Exclusion of Governmental Services Performed "In Case of Emergency"

1. Purpose. To restate a Departmental interpretation of a Federal law exclusion from unemployment compensation (UC) coverage for governmental services performed in case of emergency and to provide the Department's position on the distinction between emergencies and disasters.

2. References. The Federal Unemployment Tax Act (FUTA); Draft Language and Commentary to Implement the Unemployment Compensation Amendments of 1976--P.L. 94-566 (1976 Draft Language).

3. Background. In the past year, several questions have arisen concerning the coverage of certain governmental services performed as a result of natural disasters. These questions have concerned Section 3309(b)(3)(D), FUTA, which permits the exclusion from coverage of temporary govern-mental services performed "in case of . . . emergency". This UIPL is issued to restate the Department's interpre-tation concerning what services are performed "in case of . . . emergency" and to provide the Department's position on the distinction between emergencies and disasters.

4. Federal Law Requirements. The Department has long taken the position that, because FUTA is a remedial statute aimed at overcoming the evils of unemployment, it is to be liber-ally construed to effectuate its purposes and exceptions to its coverage requirements are to be narrowly construed. This rule of construction avoids "difficulties for which the remedy was devised and adroit schemes by some employers and employees to avoid the immediate burdens at the expense of the benefits sought by the legislation." ⁽¹⁾ As such, provisions requiring coverage of services are construed broadly, while exceptions to required coverage are construed narrowly.

   Among other things, Section 3304(a)(6)(A), FUTA, requires coverage of services performed for certain governmental entities. Specifically, it requires coverage of services to which Section 3309(a)(1) applies. Among these services are those excluded from the term "employment" solely by reason of Section 3306(c)(7). Section 3306(c)(7) applies to services performed for a "State, or any political subdivi-sion thereof" and instrumentalities of these entities. Exceptions to this required coverage are permitted only when specified by Federal law.

   Section 3309(b)(3) excludes from required coverage services performed for the above governmental entities if such service is performed by an individual in the exercise of his duties--

   (d)  as an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood, or similar emergency . . . . [Emphasis added.]

5. Discussion. In his remarks on the legislation which created the emergency exclusion, Representative Corman, the acting chairman of the responsible subcommittee, stated that--

   A similarly worded exclusion is also contained in the Social Security Act and in the unemployment compensation program for Federal employees. This exclusion has the purpose of excluding only those individuals hired or impressed into service to deal directly with an emergency or urgent distress associated with an emergency. [122 Cong. Rec. 35131 (1976). Emphasis added.]

   In 1976 the Department quoted the above language and stated that--

   [T]he exclusion applies to individuals who are hired or impressed to assist in emergencies and includes such tasks as fire-fighting, removal of storm debris, restoration of public facilities, snow removal, road clearance, etc. [1976 Draft Legislation, page 27. Emphasis added.]

   The FUTA exclusion applies only to services performed "in case of" fire, storm, snow, earthquake, flood, or similar emergency. "Emergency" is defined in the Second College Edition of the American Heritage Dictionary as "an unexpected situation or sudden occurrence of a serious and urgent nature that demands immediate action." The FUTA language "in case of" indicates that it is the emergency itself - or the urgent distress caused by the emergency - which must directly cause the need for the services to be performed. Therefore, for the services to be performed "in case of . . . emergency," a direct relationship must exist between the services and the emergency, as defined above.

   Whether services performed as a result of a disaster are also performed "in case of . . . emergency," must be determined on a case-by-case basis. "Disaster" is defined in the Second College Edition of the American Heritage Dictionary as "an occurrence causing widespread destruction and distress." Since disaster-related services may be performed after the need for immediate action has passed, they are not necessarily performed "in case of . . . emergency." For example, services performed removing hurricane debris to gain access to a hospital are performed "in case of . . . emergency" when there is an immediate need to obtain access to the hospital. However, when the removal of hurricane debris from the roadside does not require immediate action, services are not performed "in case of. . . emergency" and may not be excluded from coverage on that basis.

   Conversely, an emergency situation does not always rise to the level of a disaster. For example, an emergency situation need not be widespread. Thus, even in the absence of a disaster, services may be performed "in case of . . . emergency" and the services may be excluded from coverage.

   Each State is responsible for obtaining sufficient facts to support a determination under provisions of State law corresponding to the FUTA exclusion that the services were performed "in case of . . . emergency."

6. Action Required. State agency administrators are requested to provide this UIPL to appropriate staff.

7. Inquiries. Direct questions to your Regional Office.

1. This rule of construction was set forth on page 5 of Supplement #5--Questions and Answers Supplementing Draft Language and Commentary to Implement the Unemployment Compensation Amendments of 1976 - P.L. 94-566, dated November 13, 1978. Several Federal court decisions, including two involving Federal UC law, United States v. Silk, 331 U.S. 704, 712 (1947) and Farming, Inc. v. Manning, 219 F.2d 779, 782 (3d Cir., 1955), state this principle. More recently this principle was stated in UIPL 30-96, dated August 8, 1996.