Friday, March 30, 2012


It would appear that job performance that is affected by a disability should not be considered misconduct. As the DOL states:

"The term "misconduct" is not defined in the statute. However, the Court of Appeals in Matter of James(34 NY 2d 491; A-750-1775) has indicated that "misconduct" is any volitional act or omission which is detrimental to an employer's interests. Subsequent Appeal Board decisions have indicated that "misconduct" may include acts or omissions off the job as well as on the job, if adverse effect on the employer is demonstrated. Notwithstanding the broad concept of misconduct now applied, there remain circumstances which would not justify the imposition of a disqualification for misconduct, including:

Mere inefficiency,

Inadequate performance as the result of inability or incapacity,

Inadvertence or ordinary negligence in isolated instances,

Good faith errors in judgement or discretion."

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