(Revised 10/1/2025 Release 25.16)
(N.D.A.C. 75-02-02.1-24.2)
An individual is considered gainfully employed if all the following conditions are met:
The employed individual provides a service or product that would require employment and there is a clear employer-employee relationship.
The individual is paid for their work and withholding taxes or FICA are withheld from their paycheck;
If the individual is self-employed, they must provide a service or product that results in payment for the service or product; and
The individual demonstrates the necessary skills to perform essential job functions, including physical or technical knowledge, or they have the ability to direct the activities of others.
Other considerations around gainful employment:
Gainful employment can include self-employment
Gainful employment cannot be measured by the number of hours worked or the amount of earnings but is based on the activity involved.
The work activities of applicants and recipients who receive employment related Extended Services from licensed Extended Services providers meet gainful employment criteria.
Examples of Jobs that meet gainful employment conditions:
An individual is trained and employed as an electronics technician but does not have the manual dexterity to complete testing and repair procedures due to physical disability. The technician directs an assistant on the testing and repair procedures using the technician’s knowledge of procedures and specifications necessary for production and job completion. The technician is considered gainfully employed as the individual has the skills and knowledge to supervise or direct the activity of others who perform the physical labor.
Individuals in receipt of Extended Services indicate the individual is not in an evaluative or experimental 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.
Jobs are not considered gainful employment when:
The individual is not paid for the work they do.
The employer creates a job for an individual to perform a work activity but there is normally no position required for that work activity. The job could be done by existing personnel, and the individual would not be replaced if they left the job.
An individual is engaged in an activity sorting objects such as nuts and bolts but 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 is not considered gainful employment even if the individual is paid.
The employment setting is primarily an evaluative or experimental activity.
Note: Vocational Rehabilitation, Developmental Disabilities programs 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.
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.
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.
If the individual quits their job and does not have another job, a desk review must be completed to determine if they are asset eligible for traditional Medicaid. If the client does not verify their assets or they are over the medically needy asset limit, the case must be closed. Advance notice rules must apply.
When a recipient of WWD is unable to work due to illness or injury, the individual will continue to be considered gainfully employed if the individual intends to and can return to work.
A statement from the individual’s physician or employer will be needed to indicate when the individual can reasonably be expected to return to work. The individual can remain open on WWD coverage for up to three months while on medical leave. However, if the individual has not returned after the third month, WWD must close, and asset eligibility must be determined for traditional Medicaid. Advance notice rules apply.