Gainful Employment 510-05-57-15

(Revised 10/1/04 ML#2939)

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(N.D.A.C. 75-02-02.1-24.2)

 

  1. An individual may be regarded as gainfully employed only if the activity asserted as employment:

  1. Produces a product or service that someone would ordinarily be employed to produce and for which payment is received;

  2. Reflects a relationship of employer and employee or producer and customer;

  3. Requires the individual’s physical effort for completion of job tasks, or, if the individual has the skills and knowledge to direct the activity of others, reflects the outcome of that direction; and

  4. The employment setting is not primarily an evaluative or experiential activity.

Gainful employment will normally look like work to a reasonable person and will normally include withholding or payment of FICA.  Gainful employment cannot be measured by the number of hours worked or amount of earnings, but is based solely on the activity involved.  The following examples may help in determining what is and is not gainful employment.

 

EXAMPLE:  An individual is engaged in an activity sorting objects such as nuts and bolts.  However, when the task is completed they are dumped together and mixed up again.  While there may be some therapeutic value involved for the individual, it does not produce a product that anyone would pay for, and does not look like work to a reasonable person.

 

EXAMPLE:  An individual is in a training situation where a business agrees to provide the setting for the individual to engage in some activity (stocking shelves for instance) but the business does not have a position open, does not pay the individual, and if the individual were not completing the activity, existing personnel and resources would cover it.  While it is productive activity, there is not a demand by the business for that service.

 

EXAMPLE:  An individual is trained and employed as an electronics technician.  However, due to a physical disability, does not have the manual dexterity to complete testing and repair procedures.  The individual has an assistant that the technician directs on those procedures.  Since it is the technician’s knowledge of procedures and specifications that is necessary for production, that activity is considered gainful employment even though the assistant actually performs the physical labor.  

 

In this example, the assistant may have a cognitive disability and does not have the knowledge to complete the procedures but does have the physical skills to do so with the technician’s direction.  This also would meet the test for gainful employment.  

 

EXAMPLE:  Vocational Rehabilitation, DD and Special Education often use situational assessments in actual business settings to evaluate vocational potential or to provide the individual with experiences in various employment settings to assist in making career decisions.  There may be actual work activity in the workplace but there is no commitment to hire, or one expected as an outcome.  

 

The work activities of applicants and recipients who receive employment related Extended Services from Licensed Extended Service Providers meet the gainful employment criteria. Receipt of Extended Services indicates that the individual is not in an evaluative or experiential activity, but is participating in supported employment on a long-term basis. Receipt of the Extended Services can be identified in the provider's Individual Service Plan for the applicant or recipient.

 

  1. When an individual who is considered gainfully employed stops working, and is no longer on the payroll, the individual is no longer considered gainfully employed.  However, if an individual quits one job to begin another, the individual is considered gainfully employed if the individual will not be unemployed for more than one calendar month.  

  2. When an individual who is considered gainfully employed is not working due to illness or injury, the individual is considered gainfully employed if the individual intends to, and can, return to work.  If the illness or injury is expected to last more than three months, a statement from the individual's physician will be needed indicating whether the individual can reasonably be expected to return to work. Further determinations of gainful employment shall be based on the physician’s statement.