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compensation in the base year but not less than $12.70, and provided further that with respect to registration periods beginning after June 30, 1976, the daily benefit rate shall be 60 percent of the employee's last daily rate up to $41.66 of compensation in the base year but not less than $12.70.

[40 FR 50258, Oct. 29, 1975]

§ 330.6 Use of reports of daily rates of compensation included in annual reports of creditable compensation of employees.

Any employer, in making his annual report of the creditable compensation of employees may elect to include, in a format prescribed by the Board, reports of the last daily rates of compensation in the base year for one or more employees. Any such report shall be accepted by the Board without further verification for the purpose of determining an employee's daily benefit rate in the following benefit year.

[40 FR 50258, Oct. 29, 19751

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§ 332.1 Statutory provisions.

(1) a day of unemployment with respect to any employee, means a calendar day on which he is able to work and is available for work and with respect to which no remuneration is payable or accrues to him and (2) a "day of sickness", with respect to any employee, means a calendar day on which because of any physical, mental, psychological, or nervous injury, illness, sickness, or disease he is not able to work, or, with respect to a female employee, a calendar day on which, because of pregnancy, miscarriage, or the birth of a child,

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(i) she is unable to work or (ii) working would be injurious to her health, and with respect to which ** no remuneration is payable or accrues to him *** Provided, further, That any calendar day on which no remuneration is payable to or accrues to an employee solely because of the application to him of mileage or work restrictions agreed upon in schedule agreements between employers and employees or solely because he is standing by for or laying over between regularly assigned trips or tours of duty shall not be considered either a day of unemployment or a day of sickness. (Section 1(k), Railroad Unemployment Insurance Act)

[Board Order 68-72, 33 FR 11115, Aug. 6, 1968]

§ 332.2 General considerations.

(a) Classes of service covered. Conditions under which remuneration with respect to a day may not be payable to or accrue to an employee solely because of the application to him of a mileage or work restriction exist in train-and-engine service, yard service, dining-car service, sleeping-car service, and other Pullman-car service, and similar service, and express service on trains. In the determination of a claim for benefits of an employee in any other service, the employee's lack of remuneration with respect to any claimed day shall be presumed not to be due solely to the application of a mileage or work restriction. Conditions under which remuneration with respect to a day may not be payable to or accrue to an employee solely because he is standing by for or laying over between regularly assigned trips or tours of duty exist in train-andengine service, dining-car service, sleeping-car service, and other Pullman-car service, and similar service, and express service on trains. In the determination of a claim for benefits of an employee in any other service, the employee's lack of remuneration with respect to any claimed day shall be presumed not to be due solely to his standing by for or laying over between regularly assigned trips or tours of duty.

(b) Sickness claims. An employee who, in connection with a claim to a day as a day of sickness, is held to be not able to work because of any physical, mental, psychological, or nervous

injury, illness, sickness, or disease shall not be considered to lack remuneration with respect to such day solely because of the application to him of mileage or work restrictions or solely because he is standing by for or laying over between regularly assigned trips or tours of duty. Nor shall a female employee be considered to lack remuneration with respect to a day solely because of the application to her of mileage or work restrictions or solely because she is standing by for or laying over between regularly assigned trips or tours of duty if the day is one on which, because of pregnancy, miscarriage, or the birth of a child, (1) she is unable to work or (2) working would be injurious to her health.

[Board Order 59-95, 24 FR 3372, Apr. 30, 1959, as amended at 26 FR 8593, Sept. 14, 1961; Board Order 68-72, 33 FR 11115, Aug. 6, 1968]

§ 332.3 Mileage and work restrictions.

Subject to the provisions of § 332.2(b), a day shall not be considered as a day of unemployment or as a day of sickness with respect to an employee if no remuneration is payable or accrues to him solely because of the application to him of a mileage or work restriction agreed upon in a written agreement between his employer and employees of his employer, or authorized pursuant to such written agreement. Provisions of agreements setting overtime or other premium rates of pay shall not be regarded as work restrictions. Mileage or work restrictions shall be considered as applicable to an employee with respect to any day on which he is out of service because of having reached or exceeded the maximum mileage, earnings, or hours of work prescribed in such an agreement, or authorized pursuant to such an agreement. Performance of other work by an employee while he is out of service because of having reached or exceeded the maximum mileage, earnings, or hours of work shall not serve to make the mileage or work restriction inapplicable to him.

§ 332.4 Restrictions in extra service.

Mileage or work restrictions shall be considered to exist in rotating extra board, pool, or chain gang service

when there is in effect an arrangement between the employer and its employees for increasing or decreasing the number of employees in such service according to the amount of work available. When the arrangement is such that an employee in extra board, pool, or chain gang service gets the equivalent of full-time work, his lack of remuneration on any non-work day shall, subject to the provisions of § 332.2(b), be considered as due solely to the application to him of a mileage or work restriction.

§ 332.5 Equivalent of full-time work.

In determining whether an employee has the equivalent of full-time work, consideration shall be given to the provisions of labor-management agreements prescribing the number of miles or hours' credit constituting a basic work day, week, or month in his occupation or service. An employee shall be considered to have the equivalent of full-time work with respect to a fourteen-day registration period if the number of miles or hours' credit which he earned in such period equals fourteen-thirtieths of the number of miles or hours' credit constituting full-time work for a month, or twice the number of miles or hours' credit constituting full-time work for a week, in his occupation or service.

§ 332.6 Standing by for and laying over between regularly assigned trips or tours of duty.

Subject to the provisions of § 332.2(b), a day shall not be considered as a day of unemployment or as a day of sickness with respect to an employee if no remuneration is payable or accrues to him solely because he is standing by for or laying over between regularly assigned trips or tours of duty. Only employees who hold regular assignments may be regarded as standing by for or laying over between regularly assigned trips or tours of duty. In determining whether an employee has a regular assignment, consideration shall be given to whether the trips or tours of duty have definite starting times; whether there are a definite number of trips or tours of duty, either periodically or for the whole duration of the assignment; and

whether there is a definite route of each trip or definite duration of each tour of duty. An employee who is separated from a regular assignment shall not be regarded as standing by for or laying over between regularly assigned trips or tours of duty. An employee shall be deemed separated from a regular assignment when he is suspended or discharged from service or displaced by a senior employee or held out of service for investigation or discipline, or when his regular assignment is abolished or discontinued.

§ 332.7

Consideration of evidence.

An employee shall be requested to furnish such information as to any mileage or work restrictions or as to lay-over or stand-by status as may be necessary for the determination of his claim. An employee's statement in connection with his claim that he was not out of service because of a lay-over or stand-by rule or because of a mileage or work restriction shall, in the absence of evidence to the contrary, be accepted as sufficient for a finding on that point. An employee's report of the number of miles or hours' credit earned in rotating extra board, pool, or chain gang service shall, in the absence of evidence to the contrary, be accepted as correct for purposes of determining whether he had the equivalent of full-time work during the period covered by his claim. When it appears clear that an employee in rotating extra board, pool, or chain gang service who fails to report the number of miles or hours' credit earned on days in the period covered by his claim form was not employed on enough days to have had the equivalent of full-time work in the period, no additional information as to mileage or work restrictions shall be deemed necessary for the determination of his claim.

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§ 335.101 Statutory provisions.

Subject to the provisions of section 4 of this Act, a "day of sickness", with respect to any employee, means a calendar day *** with respect to which * * * in accordance with such regulations as the Board may prescribe, a statement of sickness is filed within such reasonable period, not in excess of ten days, as the Board may prescribe *** (section 1(k) of the act).

The term "statement of sickness" mears a statement with respect to days of sickness of an employee executed in such manner and form by an individual duly authorized pursuant to section 12(i) to execute such statements, and filed as the Board may prescribe by regulations (section 1(1)(2) of the act).

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statements may be executed by any doctor (authorized to practice in the State or foreign jurisdiction in which he practices his profession) or any officer or supervisory employee of a hospital, clinic, group health association, or other similar organization, who is qualified under such regulations as the Board may prescribe to execute such statements. The Board shall issue regulations for the qualification of such persons to execute such statements. When so executed by any such person, or, in the discretion of the Board, by others designated by the Board individually or by groups, they may be accepted as initial proof of days of sickness sufficient to certify for payment a claim for benefits

**(section 12(i) of the act prior to amendment by Pub. L. 90-257, which deleted the words "and, in the case of maternity sickness, the expected date of birth and the actual date of birth of the child").

The term "registration period" means also, with respect to any employee, the period which begins with the first day with respect to which a statement of sickness is filed in his behalf in accordance with such regulations as the Board may prescribe, or the first such day after the end of a registration period which will have begun with a day with respect to which a statement of sickness was filed in his behalf, and ends with the thirteenth day thereafter (section 1(h) of the act).

(See also section 2(c) of the act as quoted in § 325.1.)

[12 FR 4667, July 15, 1947, as amended by Board Order 68-72, 33 FR 11115, Aug. 6, 1968]

§ 335.102 Manner of claiming sickness benefits.

To claim sickness benefits an employee shall (a) on the form provided by the Board for making application for sickness benefits, furnish the information required by such form, and mail the form, properly executed, to an office of the Board, together with a statement of sickness executed in accordance with the provisions of § 335.103 and (b) on forms sent him by the Board for making claims for sickness benefits, furnish the information required by such forms, and mail the forms, properly executed, to an office of the Board, together with any supplemental doctor's statements which may be required by the Board in connection therewith, executed in accordance with the provisions of § 335.103. If satisfied that an employee is so sick or injured that he cannot sign forms,

the Board may accept forms executed by someone else in his behalf.

§ 335.103 Execution of statement of sickness and supplemental doctor's statement.

A statement of sickness, and any supplemental doctor's statement which may be required by the Board, shall be executed by an individual who (a) is a doctor trained in medical and surgical diagnosis and licensed to practice his profession in the State or foreign jurisdiction in which the form is executed; or (b) is a chiropractor licensed to practice his profession in the State or foreign jurisdiction in which the form is executed; or (c) is the superintendent or other supervisory official of a hospital, clinic, group health association, or other similar organization, in which all examination and treatment are conducted under the supervision of licensed doctors trained in medical and surgical diagnosis, or under the supervision of licensed chiropractors, and in which medical records are maintained for each patient. Such individual shall execute the statement of sickness, and any supplemental doctor's statement which may be required, on the forms provided by the Board, and shall furnish the information required by such forms: Provided, however, That a statement of sickness or supplemental doctor's statement furnishing the required information may be executed on forms or official stationery provided by a hospital, clinic, group health association, or other similar organization for transcription of medical records of such organization.

[Board Order 49-186, 14 FR 3182, June 11, 1949]

§ 335.104 Filing statement of sickness and claim for sickness benefits.

(a) Time for filing statement of sickness. No day shall be considered a day of sickness with respect to an employee unless a statement of sickness with respect to such day is filed in his behalf at an office of the Board within 10 days. For example, if an employee wishes to claim November 1 as his first day of sickness, the statement of sickness must reach the Board not later than November 10. If the statement is

received on November 11, the employee cannot be paid benefits for November 1.

(b) Time for filing claim for sickness benefits. No day shall be considered a day of sickness with respect to an employee unless a claim for sickness benefits with respect to a registration period including such day is filed by or in behalf of the employee at an office of the Board, together with any supplemental doctor's statement which may be required by the Board in connection therewith, within 10 days after whichever is the later of (1) the last day of the registration period shown on the claim form or (2) the day such claim form was mailed to the employee.

(c) Requirements in event of failure to file claim. No day subsequent to any registration period with respect to which an employee has failed to file a claim form within the time prescribed in paragraph (b) of this section shall be considered a day of sickness with respect to the employee unless the employee files a new application for sickness benefits and a new statement of sickness within the time prescribed in paragraph (a) of this section, and complies with the other requirements of this part, with respect to such day: Provided, however, That such new application for sickness benefits and statement of sickness shall not be required with respect to any such day, if, within a reasonable time of such day, the employee notifies the Board that he wishes to claim such day as a day of sickness, and if the Board is satisfied that the employee was unable to work from the beginning of the registration period, with respect to which he failed to file a claim form within the prescribed time, up to and including such day.

(d) When form considered filed. A form shall be considered filed within the time prescribed with regard to it in paragraph (a) or (b) of this section if (1) the form was received at an office of the Board within the prescribed time; (2) the form was mailed to an office of the Board within the time specified in the instructions on the form, and was received there; (3) the employee made such effort to file the form within the prescribed time as

a reasonable person could be expected to make in the same situation, but was prevented from doing so by circumstances beyond his control, and the form was received at an office of the Board within a reasonable time after the circumstances which had prevented the employee from filing the form were removed; (4) the employee registered for the day in question under § 325.12 of this chapter, but his claim for such day as a day of unemployment was denied on the ground that he was not able to work on such day, and the form was received at an office of the Board within a reasonable time; or (5) a female employee filed a statement of maternity sickness with a view to obtaining maternity benefits for the day in question, and the form was received at an office of the Board within a reasonable time: Provided, however, That a form may not in any event be considered filed within the time prescribed with regard to it in paragraph (a) or (b) of this section unless it is received at an office of the Board within two years of the day in question.

(e) Days for which no statement of sickness deemed filed. Except for statements of sickness with respect to days in extended periods, no statement of sickness shall be deemed to have been filed with respect to any day which, if a statement of sickness were filed with respect to it, would be the first day of a registration period in a benefit year in which (1) the employee is not a qualified employee under section 3 of the Railroad Unemployment Insurance Act, or (2) benefits have already been payable to the employee for 130 days of sickness, other than days of sickness in a maternity period, or (3) benefits have already been payable to the employee for days of sickness, other than days of sickness in a maternity period, in an amount equal to his compensation in the base year.

[12 FR 4667, July 15, 1947, as amended by Board Order 52-23, 18 FR 853, Feb. 12, 1953; Board Order 68-72, 33 FR 11116, Aug. 6, 1968]

§ 335.105 Registration period.

For the purposes of this subpart, the term "registration period" means, with respect to any employee, the period of

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