Can a substitute teacher collect unemployment over summer or winter break? What "reasonable assurance" means, state by state

Usually not, if your school employer has given you "reasonable assurance" of substitute work after the break. Sometimes yes, if it has not, or if the work on offer is much less than what you had. The rule starts in federal law, each state writes and applies its own version, and your state's unemployment agency decides each claim. This post covers what the U.S. Department of Labor says and how California, New York, Kentucky and Wisconsin sources handle substitutes. Your state may differ.

This is not legal or benefits advice. It reports what the sources say and who decides.

The federal rule every state starts from

The Federal Unemployment Tax Act sets the frame. The Department of Labor explains it in Unemployment Insurance Program Letter No. 5-17, dated December 22, 2016. Under it, a school employee may not be paid unemployment based on school wages between academic years or terms, or during vacation periods and holiday recesses within terms, if the employee has a contract or reasonable assurance of doing the same kind of work when school resumes. That covers summer, and it covers winter and spring breaks.

The letter says a state has to check three things before it can deny a claim this way:

• A genuine offer. "The offer of employment may be written, oral, or implied, and must be a genuine offer," made by someone with the authority to make it.
• The same capacity. The work offered has to be the same kind as before. Teaching is one capacity. Non-teaching work is another.
• Pay that is not considerably less. The letter reads that as a figure: the conditions are considerably less if the claimant will not earn "at least 90% of the amount that the claimant earned in the first academic year or term."

If all three are met, the state then asks whether it is "highly probable that there is a job available for the claimant in the following academic year or term." The letter adds that this "does not require it to find that there is a certainty of a job."

Two more points from the letter matter to substitutes. The state agency makes the finding, and neither you nor the employer carries the burden of proving it. And the school's own statement that it gave you assurance does not settle the question. The agency still has to do the analysis.

A spot on the sub list can count

Subs often assume that having no guaranteed days means having no assurance. The state sources we read say otherwise.

California. The California Unemployment Insurance Appeals Board, in Precedent Decision P-B-501, states the rule this way: "In the case of employees performing substitute work, reasonable assurance of work as a substitute after the summer recess is sufficient even though the employer may not be able to specify exactly when the claimant would perform services." The Employment Development Department's school employee FAQ says the same about substitute teachers: a school does not have to give a specific return date. The same FAQ says a job offer that depends on enrollment, funding or program changes is not reasonable assurance.

New York. The Department of Labor's page for teachers and other school workers lists when assurance "will generally be found" for substitutes and per diems: there is notice that the teacher will be placed on a substitute list, the list will be used for placing substitutes, there is a reasonable expectation that substitute positions will exist, and "the substitute can expect to earn at least 90% of the prior term's remuneration (wages and benefits)." It also says assurance can be shown by a letter or by "verbal assurance, if reasonable under the circumstances."

Kentucky. A Kentucky Career Center notice says substitutes with reasonable assurance of returning to the same or similar job are not eligible during a regularly scheduled break, and it names summer, fall, winter and spring breaks as examples. It says assurance "may include a contract, a written and/or verbal offer, etc." The notice was written during the COVID-19 pandemic and carries no date, so confirm with the Kentucky Office of Unemployment Insurance that it is current.

When a substitute does not have reasonable assurance

The same sources describe the other side.

No assurance was given. The Kentucky notice asks, "If I do not have reasonable assurance of a return am I eligible to continue UI benefits?" and answers, "Yes." Benefits continue until the school system makes an offer of reasonable assurance.

The work on offer has shrunk. Wisconsin's Labor and Industry Review Commission ruled for a substitute teacher in Hearing No. 08604528MW, dated October 16, 2008. It said the next year's terms must be reasonably similar to the last year's, and that this requirement applies to substitute teachers. In that case the number of substitutes had grown by almost 70 while more than 400 teaching positions were cut, and the employer's letter was not mailed until July 11, 2008. The commission found no reasonable assurance, and the sub was eligible for benefits, if otherwise qualified. It defined reasonable assurance as "assurance of employment sufficiently certain that a reasonable person in the same situation would rely upon such assurance."

The pay test fails. Under the federal letter and New York's page, an offer on which you would earn less than 90% of what you earned before is not reasonable assurance.

One caution on California's P-B-501. It is often cited for its 30-day rule: the employer's written notice came one day late, and the board held that the claimant had not received reasonable assurance. That claimant was a substitute security officer. The 30-day written notice in Unemployment Insurance Code section 1253.3 applies to non-instructional school employees, and the decision says so. Do not read it as a rule for substitute teachers.

If you sub for more than one district, or for a staffing agency

More than one district. The federal letter says a state may not find reasonable assurance based only on an offer from one of your school employers. It has to look at each one. If every employer gave assurance, school wages cannot be used. If none did, they all can. If some did and some did not, the letter gives states two options, so the result depends on your state.

A staffing agency. This also varies. New York's page says its reasonable assurance law does not apply to a person "working as a contractor for a private company" that performs services for an educational institution, and gives a contracted bus driver as the example. The federal letter says states may choose to extend the rule to employees who provide services to or on behalf of a school. If your paycheck comes from an agency, ask your state's unemployment agency which rule applies to you.

Other jobs. Wages from non-school work are treated separately. California's EDD says a person with a non-school employer may be able to receive benefits based only on those wages. New York's page says a school employee with assurance may still be able to file if other work in the base period paid enough.

How to find your state's answer

• Read what the school sent you. Many employers send a reasonable assurance letter in the spring. Keep it. Note the date, what it offers, and any conditions.
• Search your state unemployment agency's site for "school employees" or "reasonable assurance." California and New York each have a page under those words.
• You can file and let the agency decide. The federal letter says, "All workers may file a claim for benefits as soon as they become unemployed." Filing is not the same as qualifying.
• Answer the weekly questions accurately, and tell the agency if your situation changes. The federal letter says a person found to have no assurance can become subject to the denial later, once assurance is given.
• You can appeal. Kentucky's notice says a denial comes with an appealable determination. New York's page says you have the right to request a hearing.

What we can't tell you

• Whether you qualify. That depends on your state's law, your earnings, the offer you received and your other work. The state agency decides, not the district and not us.
• How much you would receive, or for how long. Benefit amounts are set by each state.
• The rule in the states not covered here. We read sources for four states and the federal letter. Do not treat any one state's rule as national.
• Whether each page is still current. We read them on October 12, 2026. The Wisconsin decision is from 2008, the California precedent was adopted on December 11, 2012, and the Kentucky notice is undated.

For the income side of slow months in general, see our earlier post on substitute income.

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