decided: March 19, 1981.
WILLIAM J. DEEMER, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT
Appeal from the Order of the Unemployment Compensation Board of Review in the Case of In Re: Claim of William J. Deemer, No. B-177303.
Sandra L. Smales, with her Louis Lessem, for petitioner.
Stephen B. Lipson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.
Judges Wilkinson, Jr., Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt.
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The petitioner*fn1 seeks review of a determination of the Board*fn2 finding him to be ineligible for trade readjustment
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assistance (TRA) under the Trade Act of 1974 (Trade Act), 19 U.S.C. § 2101 et seq.
The petitioner was employed for 19 years by Jones & Laughlin Steel Corporation until a back problem caused him to take sick leave from May 11, 1978 until May 31, 1979. When he was able to return to work, he found that his position as a clerk had been eliminated and he thereafter applied for TRA benefits.
Under the Trade Act, benefits are available for workers whose employment in certain industries*fn3 has been adversely affected by imported goods and foreign competition, 19 U.S.C. § 2102(4), and, to be eligible for benefits, an employee who has been separated from his employment in one of the affected industries must have "had, in the 52 weeks immediately preceding such total or partial separation, at least 26 weeks of employment at wages of $30 or more a week in adversely affected employment with a single firm or subdivision of a firm. . . ." 19 U.S.C. § 2291(2); see also 29 C.F.R. § 91.7(c). The petitioner's application for TRA benefits was denied by the Office of Employment Security and, after a hearing, a referee upheld the denial, finding that the petitioner had no weeks during the 52 weeks preceding his May 31, 1979 separation in which he was employed in an adversely affected industry. The Board affirmed the referee's decision and this appeal followed.
The petitioner argues (1) that the period of his sick leave should have been considered to be "weeks of employment" for purposes of determining his eligibility for TRA benefits and (2) in the event that his sick leave did not constitute "employment" for purposes of the Trade Act, that his date of separation from
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employment, which marks the point from which the 52-week period is determined, should be deemed to have been August 18, 1978, when his position was eliminated.
We believe that the first argument is controlled by our decisions in Long v. Unemployment Compensation Board of Review,*fn* and Ford v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 580, 409 A.2d 1209 (1980), wherein we held that an employee's paid vacation leave does not fall within the definition of "employment" contained in the Department of Labor's regulations.*fn4 We can find no legitimate reason for distinguishing the paid vacation leave in those cases from the sick leave with which we are here concerned in determining weeks of employment under the Trade Act and we must, therefore, affirm the Board's decision that the petitioner was not employed in an adversely affected industry from May 11, 1978 through May 31, 1979.*fn5
Nor can we accept the contention that the petitioner's date of separation should have been set at August 18, 1978, when his former job was eliminated. Section 91.3(a)(13) of the regulations defines "date of separation" as the date upon which an employee becomes totally separated from his employment, 29 C.F.R. § 91.3(a)(13), and such a separation must have been caused by a "lack of work in adversely affected
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employment. . . ." 29 C.F.R. § 91.3(a)(4)(i). Any interruption of the employment of the petitioner here, at least through May 31, 1979, was due entirely to his medical condition. His eligibility must, therefore, be based on the 52 weeks preceding May 31, 1979.
We will affirm the Board's denial of TRA benefits.
And, Now, this 19th day of March, 1981, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.