Tuesday, April 10, 2012

NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS

Currently, the DOL recognizes alcoholism as a disability with respect to the issue of absenteeism and misconduct:

"A-750-2042
INDEX 1110-16
1125-11
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August, 1991

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISCONDUCT
Absence and Lateness
Alcohol
ALCOHOLISM -ABSENTEEISM

A discharge for repeated absence from work is not misconduct if claimant's absences are attributable to claimant's disease of alcoholism.

AB 382,990

FINDINGS OF FACT: The claimant worked as a clerk-typist for the United States Postal Service from November, 1983 until May 29, 1987. During the course of his employment the claimant had several absences which were unauthorized. On January 1, 1987, a notice of proposed removal was issued to the claimant because of his unauthorized absences. The employer and the claimant's union met, and stipulated that the proposed notice of removal be stayed, and that the claimant be placed on three months probation. It was further stipulated that the claimant would be considered to be on final warning, and that he would face discharge if he violated the employer's rules and regulations. Subsequently, on March 3, April 17 and April 21, the claimant was absent without leave. His absences were due to his having been drinking. He made an effort to contact supervisory personnel. The claimant is an alcoholic. As a result of these last three unauthorized absences, the claimant was discharged.

Before these last three absence, management suggested to the claimant that he attend the employer's program for employees with a drinking problem. The claimant attended almost ten open sessions of this program. He also was advised that if he could not make the schedule and session to let the counselor know. Claimant found that these sessions were not productive. In May, 1987, claimant started attending and has continued attending programs given by alcoholics anonymous. He has been attending such program. several times a week.

OPINION: The credible evidence establishes that the claimant was discharged due to his last three unauthorized absences, which were attributable to his alcoholism. significantly, there is no indication nor contention that the claimant was discharged because he failed to attend the employer's assistance program or that such attendance was a condition of continued employment. Under similar circumstances an employee's failure to participate in such a program on a level which was acceptable to the employer has been held not to rise to the level of misconduct (see Matter of Grajales, 104 AD 2nd 688; see Appeal Board 378,787).Under the foregoing circumstances, his discharge was directly due to his disease of alcoholism, and does not constitute misconduct (see Matter of Francis, 56 NY 2nd. 600). Accordingly, we conclude that the claimant was discharged under non disqualifying conditions.

DECISION: The initial determination of the local office is sustained. The employer's objection is overruled.

The decision of the administrative law judge is reversed."

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