In AB 543722 (Mailed and Filed February 6, 2009):
"The credible evidence establishes that the employer's client ended the claimant's assignment on March 14, 2008, due to the claimant's pregnancy. We reject the employer's contention that the claimant had resigned from employment in anticipation of the delivery of her child. In so doing, we note that the claimant had enjoyed the assignment and intended to work until the last possible moment for financial reasons. And, as the claimant did not deliver until April 2, she had no reason to end the assignment but for the client's discharge. We further note that the employer has produced no first-hand testimony to dispute the claimant's version of events, and in the absence of such first-hand testimony, the employer's hearsay cannot prevail. Thus, we conclude that that the claimant did not voluntarily resign from her employment without good cause, but instead, was discharged as a consequence of her pregnancy. Accordingly, we conclude that the claimant was separated from her employment under non-disqualifying circumstances."
Monday, April 30, 2012
Friday, April 27, 2012
NEW YORK UNEMPLOYMENT INSURANCE - PREGNANCY
See also (Mailed and Filed: SEPTEMBER 25, 2008) IN THE MATTER OF: Appeal Board No. 542082:
"The credible evidence establishes that the claimant quit her job when she was denied the use of a chair during her shift. It is undisputed that the employer knew that the claimant was pregnant. The claimant had given notice to the employer that she was having physical difficulty standing through her entire shift and requested the use of a chair. No evidence was submitted indicating that the employer had informed the claimant that a doctor's note was needed in order to obtain an accommodation for her known temporary disability. We note that there had been a chair behind the front desk until one week prior thus it was a condition of her employment when she'd started work and was a reasonable accommodation that would have enabled her to continue to work without a problem. On April 5, 2008, just four days after the general manager made it clear that she had granted only a one day accommodation, the claimant was presented with an absolute prohibition by her supervisor preventing her from using a chair while she worked. It was reasonable for the claimant to then conclude that the manager had no intention of making an accommodation for her temporary disability. Under these circumstances, her decision not to continue working under those conditions was reasonable. Accordingly, we conclude that the claimant voluntarily left her employment with good cause and is eligible for benefits."
"The credible evidence establishes that the claimant quit her job when she was denied the use of a chair during her shift. It is undisputed that the employer knew that the claimant was pregnant. The claimant had given notice to the employer that she was having physical difficulty standing through her entire shift and requested the use of a chair. No evidence was submitted indicating that the employer had informed the claimant that a doctor's note was needed in order to obtain an accommodation for her known temporary disability. We note that there had been a chair behind the front desk until one week prior thus it was a condition of her employment when she'd started work and was a reasonable accommodation that would have enabled her to continue to work without a problem. On April 5, 2008, just four days after the general manager made it clear that she had granted only a one day accommodation, the claimant was presented with an absolute prohibition by her supervisor preventing her from using a chair while she worked. It was reasonable for the claimant to then conclude that the manager had no intention of making an accommodation for her temporary disability. Under these circumstances, her decision not to continue working under those conditions was reasonable. Accordingly, we conclude that the claimant voluntarily left her employment with good cause and is eligible for benefits."
Thursday, April 26, 2012
NEW YORK UNEMPLOYMENT INSURANCE - PREGNANCY
As recently as March 20, 2012, the Appeal Board issued AB 560631 and stated:
"The credible evidence establishes that the claimant's employment ended effective February 15, 2011 when she did not return to her existing duties which involved working with lab samples which included volatile and toxic solvents which she had been advised by her doctor to avoid during her pregnancy. The employer had no other positions available for the claimant whereby she could avoid exposure to these toxins. While the employer did offer the claimant a leave of absence, it was unpaid and there was no guarantee that her position would be available upon her return to work. The employer's contention that there was ample safety equipment available to protect the claimant from any exposure is rejected in light of the claimant's sworn, firsthand testimony that she was exposed to these materials while using safety equipment in the past. Accordingly, the claimant had good cause to separate from her employment."
"The credible evidence establishes that the claimant's employment ended effective February 15, 2011 when she did not return to her existing duties which involved working with lab samples which included volatile and toxic solvents which she had been advised by her doctor to avoid during her pregnancy. The employer had no other positions available for the claimant whereby she could avoid exposure to these toxins. While the employer did offer the claimant a leave of absence, it was unpaid and there was no guarantee that her position would be available upon her return to work. The employer's contention that there was ample safety equipment available to protect the claimant from any exposure is rejected in light of the claimant's sworn, firsthand testimony that she was exposed to these materials while using safety equipment in the past. Accordingly, the claimant had good cause to separate from her employment."
Wednesday, April 25, 2012
NEW YORK UNEMPLOYMENT INSURANCE - PREGNANCY
The DOL also lists the following AB cases regarding pregnancy and voluntary sepration:
"A voluntary quit disqualification was upheld in the case of a claimant who ceased working voluntarily, rejected a maternity leave without valid reason, and filed for benefits before childbirth. (A.B. 195,433)
A claimant who intends to return to the labor market following childbirth voluntarily leaves employment without good cause when she fails to apply for an obtainable maternity leave. (A.B. 191,796)"
"A voluntary quit disqualification was upheld in the case of a claimant who ceased working voluntarily, rejected a maternity leave without valid reason, and filed for benefits before childbirth. (A.B. 195,433)
A claimant who intends to return to the labor market following childbirth voluntarily leaves employment without good cause when she fails to apply for an obtainable maternity leave. (A.B. 191,796)"
Tuesday, April 24, 2012
NEW YORK UNEMPLOYMENT INSURANCE - PREGNANCY
Also from the DOL on pregnancy and voluntary separation:
"A-750-1716
Index Nos. 1605B-2
1695.2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June 24, 1969
INTERPRETATION SERVICE – BENEFIT CLAMS
VOLUNTARY LEAVING
Discharge or leaving
Health or safety
Appeal Board Case 149,438
LAYOFF DUE TO PREGNANCY – REJECTION OF MATERNITY LEAVE
If claimant’s services are terminated under an employer’s policy requiring employees to cease working at a given stage of pregnancy, there is no voluntary leaving of employment even though the claimant declined to accept a maternity leave.
Referee’s Decision: The initial determinations of the local office, disqualifying claimant from receiving benefits effective October 5, 1968, on the ground that she voluntarily left her employment without good cause, and holding her ineligible to receive benefits effective October 7, 1968, on the ground that she was not available for employment, are overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, a clerk-typist, was pregnant, with an expected date of confinement of January 1, 1969. She had been employed at a bank since July 1965 and was a permanent employee, entitled to participate in the employer’s profit sharing and stock-purchase plans and other employee fringe benefits. Claimant’s physician had reported that she was capable of working up to the probable date of her confinement. However, the employer’s policy was to require its employees to cease working after completing the sixth month of pregnancy. At such time, the employer’s rules provided that such employees could obtain a six months’ maternity leave covering the last three months of pregnancy and the first three months following delivery. If such leave were obtained, the employee’s rights in respect to all of the various participation plans and other fringe benefits and the employee’s seniority in service were preserved without diminution. Upon the completion of such leave, the employee would return to work at the same salary she was receiving at the start of her leave and, if possible, in the same position she had held; if such were not possible, then in a position commensurate with the prior one. Claimant was aware of her right to receive such leave, with all attendant job-protection provisions, but she decided not to apply for it and instead she resigned because she wanted to withdraw, for her own use, the moneys with which she was credited in the participation plans. Her last day of work was October 4, 1968.
Claimant filed a claim for benefits, effective October 7, 1968. During the period subsequent thereto, claimant’s search for employment was curtailed because of her physician’s advice not to use public transportation during the rush hours. When interviewed at the local office on October 21, 1968, she stated that she was relying primarily on the employment service office to find work for her and therefore, up to that date, she had not sought work independently. Again, for the period from October 28, 1968 through November 4, 1968, she advised the local office that she had made no independent search for employment. Whatever contacts she did make with prospective employers were predominantly by telephone and she invariably advised them of her pregnant condition.
Appeal Board Opinion and Decision: Notwithstanding that it is undisputed that claimant was compelled to leave her employment on October 4, 1968, by reason of the rules of the employer which required that she terminate her employment on October 4 because of the stage of her pregnancy, it is nevertheless contended on behalf of the Industrial Commissioner that she must be deemed to have voluntarily left her employment without good cause for the reason that she failed to apply for a leave of absence which would have assured her re-employment by the same employer when and if she was prepared to return to the labor market after the birth of her child. While the contention thus advanced may find some support in prior decisions of the Board, we have now reviewed the matter and conclude that the disqualification provided for in Section 593.1 of the Law has no application under the circumstances herein.
The pertinent language of Section 593.1 of the Law is:
"No days of total unemployment shall be deemed to occur after a claimant’s voluntary separation without good cause from his last employment prior to the filing of his claim***" (Underscoring supplied)
Obviously claimant’s separation from her employment on October 4, 1968 was, in no sense, voluntary. Her separation from the employment on that day was mandatory by virtue of the employer’s policy which required her to cease working when she had reached the sixth month of her pregnancy. It is, of course, true that claimant could have protected her status for subsequent re-employment by availing herself of the privilege of obtaining a leave of absence for a six month period so that she could be assured of re-employment at that time if she intended to remain in the labor market after the birth of her child. However, the Law does not provide for a disqualification due to a claimant’s failure to protect an employer-employee relationship but only for "separation***from***employment."
The test, which must be applied, therefore, is whether claimant’s failure to apply for the leave of absence was the cause for her separation from the employment. The answer is self-evident because, irrespective of any application she could have made for a leave of absence, the employer’s policy mandated the termination of her employment on October 4, 1968. Thus, the conclusion is compelled that her separation from her last employment prior to the filing of her claim was entirely involuntary.
If claimant fails to obtain any employment prior to the time when the leave of absence which she could have obtained would expire and her failure to apply for the leave results in her inability to obtain rehire by her last employer when and if she is prepared to return to the labor market, after the birth of her child, it would then follow that her separation from employment at that time would be the result of her voluntary act in having failed to protect the employer-employee relationship so as to assure herself of re-employment at that time. However, that is not the issue before us. We are concerned solely with whether or not claimant’s unemployment in the period here at issue, prior to the birth of her expected child, is the result of her voluntary separation from the employment. Applying such tests were are persuaded to the conclusion that claimant's’ unemployment in the period with which we are concerned results solely from a lay-off precipitated by the enforcement of the employer's rules.
It thus becomes necessary to determine whether or not claimant was available for employment during the period for which she claimed benefits. An analysis of the proof adduced herein compels the conclusion that claimant failed to establish her availability for employment throughout the period in issue because she failed to demonstrate the diligence expected of a person who is genuinely desirous of becoming re-employed, especially in view of the limited time during which she could have continued to work before the birth of her child. Her job search appears to be mere token in nature and completely inadequate in scope and with respect to the methods she used to learn of possible job opportunities.
The initial determination of the local office disqualifying the claimant for having voluntarily left her employment without good cause is overruled.
The initial determination of the local office ruling claimant ineligible on the ground that she was unavailable for employment is sustained.
The decision of the referee is modified accordingly, and as so modified, is affirmed. (April 25, 1969)"
"A-750-1716
Index Nos. 1605B-2
1695.2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June 24, 1969
INTERPRETATION SERVICE – BENEFIT CLAMS
VOLUNTARY LEAVING
Discharge or leaving
Health or safety
Appeal Board Case 149,438
LAYOFF DUE TO PREGNANCY – REJECTION OF MATERNITY LEAVE
If claimant’s services are terminated under an employer’s policy requiring employees to cease working at a given stage of pregnancy, there is no voluntary leaving of employment even though the claimant declined to accept a maternity leave.
Referee’s Decision: The initial determinations of the local office, disqualifying claimant from receiving benefits effective October 5, 1968, on the ground that she voluntarily left her employment without good cause, and holding her ineligible to receive benefits effective October 7, 1968, on the ground that she was not available for employment, are overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, a clerk-typist, was pregnant, with an expected date of confinement of January 1, 1969. She had been employed at a bank since July 1965 and was a permanent employee, entitled to participate in the employer’s profit sharing and stock-purchase plans and other employee fringe benefits. Claimant’s physician had reported that she was capable of working up to the probable date of her confinement. However, the employer’s policy was to require its employees to cease working after completing the sixth month of pregnancy. At such time, the employer’s rules provided that such employees could obtain a six months’ maternity leave covering the last three months of pregnancy and the first three months following delivery. If such leave were obtained, the employee’s rights in respect to all of the various participation plans and other fringe benefits and the employee’s seniority in service were preserved without diminution. Upon the completion of such leave, the employee would return to work at the same salary she was receiving at the start of her leave and, if possible, in the same position she had held; if such were not possible, then in a position commensurate with the prior one. Claimant was aware of her right to receive such leave, with all attendant job-protection provisions, but she decided not to apply for it and instead she resigned because she wanted to withdraw, for her own use, the moneys with which she was credited in the participation plans. Her last day of work was October 4, 1968.
Claimant filed a claim for benefits, effective October 7, 1968. During the period subsequent thereto, claimant’s search for employment was curtailed because of her physician’s advice not to use public transportation during the rush hours. When interviewed at the local office on October 21, 1968, she stated that she was relying primarily on the employment service office to find work for her and therefore, up to that date, she had not sought work independently. Again, for the period from October 28, 1968 through November 4, 1968, she advised the local office that she had made no independent search for employment. Whatever contacts she did make with prospective employers were predominantly by telephone and she invariably advised them of her pregnant condition.
Appeal Board Opinion and Decision: Notwithstanding that it is undisputed that claimant was compelled to leave her employment on October 4, 1968, by reason of the rules of the employer which required that she terminate her employment on October 4 because of the stage of her pregnancy, it is nevertheless contended on behalf of the Industrial Commissioner that she must be deemed to have voluntarily left her employment without good cause for the reason that she failed to apply for a leave of absence which would have assured her re-employment by the same employer when and if she was prepared to return to the labor market after the birth of her child. While the contention thus advanced may find some support in prior decisions of the Board, we have now reviewed the matter and conclude that the disqualification provided for in Section 593.1 of the Law has no application under the circumstances herein.
The pertinent language of Section 593.1 of the Law is:
"No days of total unemployment shall be deemed to occur after a claimant’s voluntary separation without good cause from his last employment prior to the filing of his claim***" (Underscoring supplied)
Obviously claimant’s separation from her employment on October 4, 1968 was, in no sense, voluntary. Her separation from the employment on that day was mandatory by virtue of the employer’s policy which required her to cease working when she had reached the sixth month of her pregnancy. It is, of course, true that claimant could have protected her status for subsequent re-employment by availing herself of the privilege of obtaining a leave of absence for a six month period so that she could be assured of re-employment at that time if she intended to remain in the labor market after the birth of her child. However, the Law does not provide for a disqualification due to a claimant’s failure to protect an employer-employee relationship but only for "separation***from***employment."
The test, which must be applied, therefore, is whether claimant’s failure to apply for the leave of absence was the cause for her separation from the employment. The answer is self-evident because, irrespective of any application she could have made for a leave of absence, the employer’s policy mandated the termination of her employment on October 4, 1968. Thus, the conclusion is compelled that her separation from her last employment prior to the filing of her claim was entirely involuntary.
If claimant fails to obtain any employment prior to the time when the leave of absence which she could have obtained would expire and her failure to apply for the leave results in her inability to obtain rehire by her last employer when and if she is prepared to return to the labor market, after the birth of her child, it would then follow that her separation from employment at that time would be the result of her voluntary act in having failed to protect the employer-employee relationship so as to assure herself of re-employment at that time. However, that is not the issue before us. We are concerned solely with whether or not claimant’s unemployment in the period here at issue, prior to the birth of her expected child, is the result of her voluntary separation from the employment. Applying such tests were are persuaded to the conclusion that claimant's’ unemployment in the period with which we are concerned results solely from a lay-off precipitated by the enforcement of the employer's rules.
It thus becomes necessary to determine whether or not claimant was available for employment during the period for which she claimed benefits. An analysis of the proof adduced herein compels the conclusion that claimant failed to establish her availability for employment throughout the period in issue because she failed to demonstrate the diligence expected of a person who is genuinely desirous of becoming re-employed, especially in view of the limited time during which she could have continued to work before the birth of her child. Her job search appears to be mere token in nature and completely inadequate in scope and with respect to the methods she used to learn of possible job opportunities.
The initial determination of the local office disqualifying the claimant for having voluntarily left her employment without good cause is overruled.
The initial determination of the local office ruling claimant ineligible on the ground that she was unavailable for employment is sustained.
The decision of the referee is modified accordingly, and as so modified, is affirmed. (April 25, 1969)"
Monday, April 23, 2012
NEW YORK UNEMPLOYMENT INSURANCE - PREGNANCY
This is an issue that arises frequently and is especially relevant in the recent political discussions on working and non-working mothers.
The DOL first begins it's discussion with this cited case:
"A-750-1840
Index 1695-1
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
October 6, 1977
Interpretation Service - Benefit Claims
VOLUNTARY LEAVING
Pregnancy
Appeal Board Decision 246,566
CLAIM BEFORE CHILDBIRTH
A claimant who, solely because of pregnancy, voluntarily leaves employment not harmful to her health, is subject to disqualification for voluntary quit upon filing before childbirth, since such filing negates any intent to withdraw from the labor market.
Referee decision: The revised initial determination of the local office holding the claimant eligible to receive benefits effective August 2, 1976 without any disqualifying conditions, is sustained.
Appealed by: Employer
Findings of fact: The claimant worked for a manufacturer as a secretary from June 25, 1975 until July 30, 1976. She requested and was granted a maternity leave from August 2, 1976 until February 1, 1977. She filed a claim for benefits effective August 2, 1976. She was capable of working and wasn't advised by a doctor to leave her job. The employer had continuing work. available for her. It did not require her to take a leave of absence because of pregnancy.
Opinion: The evidence establishes that the claimant left her job while continuing work was available for her. Her immediate filing of her claim for benefits negated any intent to withdraw from the labor market because of pregnancy. Absent such intent, her taking leave was for a personal reason which is not compelling under the Law. Accordingly, we hold that she voluntarily left her employment without good cause.
Decision: The initial determination of the local office is overruled.
The employer's objection is sustained. The claimant is disqualified from receiving benefits effective July 31, 1976 because she voluntarily left her employment without good cause. This disqualification remains in effect until she has subsequently worked in employment on not less than three days in each of four weeks or earned remuneration of at least $200. Self-employment and the remuneration therefrom will not count.
The decision of the referee is reversed. (July 21, 1977)
COMMENTS
1. In this case the Appeal Board noted that claimant's employer did not require, and her doctor did not advise that she stop work. The Board held that a disqualification for voluntary quit applied even though claimant had requested and was granted a maternity leave."
The DOL first begins it's discussion with this cited case:
"A-750-1840
Index 1695-1
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
October 6, 1977
Interpretation Service - Benefit Claims
VOLUNTARY LEAVING
Pregnancy
Appeal Board Decision 246,566
CLAIM BEFORE CHILDBIRTH
A claimant who, solely because of pregnancy, voluntarily leaves employment not harmful to her health, is subject to disqualification for voluntary quit upon filing before childbirth, since such filing negates any intent to withdraw from the labor market.
Referee decision: The revised initial determination of the local office holding the claimant eligible to receive benefits effective August 2, 1976 without any disqualifying conditions, is sustained.
Appealed by: Employer
Findings of fact: The claimant worked for a manufacturer as a secretary from June 25, 1975 until July 30, 1976. She requested and was granted a maternity leave from August 2, 1976 until February 1, 1977. She filed a claim for benefits effective August 2, 1976. She was capable of working and wasn't advised by a doctor to leave her job. The employer had continuing work. available for her. It did not require her to take a leave of absence because of pregnancy.
Opinion: The evidence establishes that the claimant left her job while continuing work was available for her. Her immediate filing of her claim for benefits negated any intent to withdraw from the labor market because of pregnancy. Absent such intent, her taking leave was for a personal reason which is not compelling under the Law. Accordingly, we hold that she voluntarily left her employment without good cause.
Decision: The initial determination of the local office is overruled.
The employer's objection is sustained. The claimant is disqualified from receiving benefits effective July 31, 1976 because she voluntarily left her employment without good cause. This disqualification remains in effect until she has subsequently worked in employment on not less than three days in each of four weeks or earned remuneration of at least $200. Self-employment and the remuneration therefrom will not count.
The decision of the referee is reversed. (July 21, 1977)
COMMENTS
1. In this case the Appeal Board noted that claimant's employer did not require, and her doctor did not advise that she stop work. The Board held that a disqualification for voluntary quit applied even though claimant had requested and was granted a maternity leave."
Friday, April 20, 2012
NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS
I have not seen any cases from the Appeal Board regarding prescription drug abuse but note the following case from the Appellate Division, 3rd Department:
"SHUGG v. COMM'R. OF LABOR, 62 A.D.3d 1199 [3d Dept 2009]
Appeal from a decision of the Unemployment Insurance Appeal Board,filed September 12, 2008, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.
Mark E. Saltarelli, Tonawanda, for appellant.
Vorys, Sater, Seymour & Pease, L.L.P., Columbus, Ohio (Hugh M. RussIII of Hodgson Russ, L.L.P., Buffalo, of counsel), for Grief Industrial Packaging & Service, L.L.C., respondent.
Andrew M. Cuomo, Attorney General, New York City (Mary Hughes of counsel), for Commissioner of Labor, respondent.
Before: Cardona, P.J., Rose, Kane, Kavanagh and McCarthy, JJ., concur.
Substantial evidence supports the decision of the Unemployment Insurance Appeal Board finding that claimant, who tested positive for cocaine following an injury at work, engaged in disqualifying misconduct. "An employee's use of controlled substances which produces a positive result following a drug test has been held to constitute disqualifying misconduct" (Matter of Young [Commissioner of Labor],28 AD3d 989, 989 [2006] [citations omitted]; see Matter of Javier[Commissioner of Labor], 48 AD3d 1011, 1012 [2008], lv denied 10 NY3d 712[2008]). Here, claimant admittedly used cocaine a few days before his positive test result and was aware of the employer's policy in this regard. To the extent that claimant contends that his discharge violated the Human Rights Law, we need note only that "[a]lthough alcohol dependency qualifies as a disability under the Human Rights Law, drug abuse doe snot" (Matter of Kirk v City of New York, 47 AD3d 406 [2008] [citations omitted]). Similarly, even assuming that drug dependency could excuse what otherwise would be disqualifying misconduct (compare Matter of McLaughlin [Commissioner of Labor], 31 AD3d 850, 851 [2006]), claimant failed to establish that he suffered from such condition. Nor did the employer discriminate against claimant by failing to offer him a "last chance agreement," as there was no showing that claimant was similarly situated to the two employees to whom such agreements had been granted.Notably, neither of those individuals received last chance agreements after failing a drug test. Claimant's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.
Ordered that the decision is affirmed, without costs."
"SHUGG v. COMM'R. OF LABOR, 62 A.D.3d 1199 [3d Dept 2009]
Appeal from a decision of the Unemployment Insurance Appeal Board,filed September 12, 2008, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.
Mark E. Saltarelli, Tonawanda, for appellant.
Vorys, Sater, Seymour & Pease, L.L.P., Columbus, Ohio (Hugh M. RussIII of Hodgson Russ, L.L.P., Buffalo, of counsel), for Grief Industrial Packaging & Service, L.L.C., respondent.
Andrew M. Cuomo, Attorney General, New York City (Mary Hughes of counsel), for Commissioner of Labor, respondent.
Before: Cardona, P.J., Rose, Kane, Kavanagh and McCarthy, JJ., concur.
Substantial evidence supports the decision of the Unemployment Insurance Appeal Board finding that claimant, who tested positive for cocaine following an injury at work, engaged in disqualifying misconduct. "An employee's use of controlled substances which produces a positive result following a drug test has been held to constitute disqualifying misconduct" (Matter of Young [Commissioner of Labor],28 AD3d 989, 989 [2006] [citations omitted]; see Matter of Javier[Commissioner of Labor], 48 AD3d 1011, 1012 [2008], lv denied 10 NY3d 712[2008]). Here, claimant admittedly used cocaine a few days before his positive test result and was aware of the employer's policy in this regard. To the extent that claimant contends that his discharge violated the Human Rights Law, we need note only that "[a]lthough alcohol dependency qualifies as a disability under the Human Rights Law, drug abuse doe snot" (Matter of Kirk v City of New York, 47 AD3d 406 [2008] [citations omitted]). Similarly, even assuming that drug dependency could excuse what otherwise would be disqualifying misconduct (compare Matter of McLaughlin [Commissioner of Labor], 31 AD3d 850, 851 [2006]), claimant failed to establish that he suffered from such condition. Nor did the employer discriminate against claimant by failing to offer him a "last chance agreement," as there was no showing that claimant was similarly situated to the two employees to whom such agreements had been granted.Notably, neither of those individuals received last chance agreements after failing a drug test. Claimant's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.
Ordered that the decision is affirmed, without costs."
Thursday, April 19, 2012
NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS
A somewhat different view has been taken by the Appeal Board when the issue of misconduct relates to a proper use of prescription medication. See IN THE MATTER OF: Appeal Board No. 546853 (Mailed and Filed: JANUARY 06, 2010):
"OPINION: The credible evidence establishes that the claimant was discharged on December 24, 2008, because he was discovered sleeping instead of working. The parties have disagreed on the date of discharge with the claimant contending that he was told to take off January 2009 to recover from a January 6, 2009 esophageal procedure and in February 2009 he was told that he was discharged. We credit the employer's testimony on this point over that of the claimant because on these circumstances, it is more logical that the employer's memory of their interaction upon awakening the claimant would be more accurate than that of the claimant who had just been awakened from a drug induced sleep.It is undisputed that the claimant suffered injury from the suicide attempt. We have further accepted the employer's testimony that upon awakening the claimant, he was "out of it" with glassy eyes and slurred speech. Since the employer does not contend that the claimant had been drinking, there is nothing to gainsay the claimant's testimony that he suffered pain and took the prescription medicine which had been prescribed for this. Since it had never caused the claimant to go to sleep before, and since the claimant had no prior incident of sleeping on the job, we conclude that the claimant's prescription-drug induced sleeping episode, instead of working, does not rise to the level of misconduct."
"OPINION: The credible evidence establishes that the claimant was discharged on December 24, 2008, because he was discovered sleeping instead of working. The parties have disagreed on the date of discharge with the claimant contending that he was told to take off January 2009 to recover from a January 6, 2009 esophageal procedure and in February 2009 he was told that he was discharged. We credit the employer's testimony on this point over that of the claimant because on these circumstances, it is more logical that the employer's memory of their interaction upon awakening the claimant would be more accurate than that of the claimant who had just been awakened from a drug induced sleep.It is undisputed that the claimant suffered injury from the suicide attempt. We have further accepted the employer's testimony that upon awakening the claimant, he was "out of it" with glassy eyes and slurred speech. Since the employer does not contend that the claimant had been drinking, there is nothing to gainsay the claimant's testimony that he suffered pain and took the prescription medicine which had been prescribed for this. Since it had never caused the claimant to go to sleep before, and since the claimant had no prior incident of sleeping on the job, we conclude that the claimant's prescription-drug induced sleeping episode, instead of working, does not rise to the level of misconduct."
Wednesday, April 18, 2012
NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS
The Appeal Board has a similar position on drug addiction resulting from illegal substances. In AB 542565 (Mailed and Filed: SEPTEMBER 16, 2008), the Appeal Board noted:
"OPINION: The evidence establishes that the claimant resigned from his employment due to his own personal issues. The claimant contends that the reason for his separation was that he was addicted to drugs and decided to go to rehabilitation. However, while there may have been a clear need for the claimant to have undergone treatment, it should be noted that his drug addiction/abuse and subsequent need for rehabilitation was a foreseeable consequence of his own use of a controlled substance."
The full decision can be found at AB 542565 (Mailed and Filed: SEPTEMBER 16, 2008)
"OPINION: The evidence establishes that the claimant resigned from his employment due to his own personal issues. The claimant contends that the reason for his separation was that he was addicted to drugs and decided to go to rehabilitation. However, while there may have been a clear need for the claimant to have undergone treatment, it should be noted that his drug addiction/abuse and subsequent need for rehabilitation was a foreseeable consequence of his own use of a controlled substance."
The full decision can be found at AB 542565 (Mailed and Filed: SEPTEMBER 16, 2008)
Tuesday, April 17, 2012
NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS
Clearly, the DOL is distinguishing between alcoholism and drug addiction resulting from illegal substances.
"A-750-2071
Index No. 1110-19
1125-12
1152-8
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSRUANCE DIVISION
ADJUDICATION SERVICES OFFICE
March 1996
INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
MISCONDUCT
Absence and Lateness
Alcohol
Drugs
DRUGS & ALCOHOL
Unsatisfactory attendance is not excused by claimant’s addictions to both a controlled substance and alcohol. Because the controlled substance is illegal, the claimant’s alcoholism should not be considered in determining the reason for separation.
AB 445,500
By initial determination of the local office, the claimant was held eligible to receive benefits without any disqualifying conditions effective September 19, 1994. The employer requested a hearing contending that the claimant should be disqualified from receiving benefits because of a loss of employment through misconduct in connection therewith.
The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the employer. By decision dated November 23, 1994 the Administrative Law Judge sustained the initial determination.
The employer appealed the judge’s decision to the Board.
Based on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant was employed as a probationary quality control technician from June 6, 1994 to August 17, 1994. The claimant had been warned several times about his tardiness, the last time being July 14, 1994. The claimant did not report to work after August 17, 1994, due to his addiction to alcohol and cocaine. He sought treatment for his condition. He entered a residential treatment program on August 18, 1994. He was discharged from his position because of his unsatisfactory attendance while on probation.
OPINION: The credible evidence establishes that the claimant lost his employment as a result of his unsatisfactory attendance. His last absence was caused at least in part by his use of cocaine, which is in violation of the law. The claimant admitted this at the hearing. In Matter of Kuehn, 174 AD 2d 776, aff’g Appeal Board No. 398,533A, the Court affirmed a decision of the Board which observed significant difference in the way alcoholism and drug addiction are judged by society and, consequently, how each is and should be viewed under New York State law. As procurement, possession, and use of a controlled substance constitutes criminal activity, the negative consequences of which can be reasonably foreseen, the claimant must bear the responsibility for his last absence.
The employer had a legitimate expectation that its employee would be present during scheduled hours of work. This record establishes that the claimant, while on probation and already having been warned about tardiness, was unable to meet this expectation due to his use of cocaine and alcohol. We will not, in the face of the claimant’s admission to use of cocaine, apportion the reason for his last absence between use of alcohol and use of cocaine where there is evidence of both. So long as his course of conduct, culminating in his failure to report for work, is clearly attributable to voluntary use of cocaine, we find that he lost his employment through misconduct in connection therewith. The claimant should, therefore, be disqualified from receiving benefits. The disqualification is effective August 18, 1994.
DECISION: The initial determination of the local office is overruled.
The decision of the Administrative Law Judge is reversed."
"A-750-2071
Index No. 1110-19
1125-12
1152-8
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSRUANCE DIVISION
ADJUDICATION SERVICES OFFICE
March 1996
INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
MISCONDUCT
Absence and Lateness
Alcohol
Drugs
DRUGS & ALCOHOL
Unsatisfactory attendance is not excused by claimant’s addictions to both a controlled substance and alcohol. Because the controlled substance is illegal, the claimant’s alcoholism should not be considered in determining the reason for separation.
AB 445,500
By initial determination of the local office, the claimant was held eligible to receive benefits without any disqualifying conditions effective September 19, 1994. The employer requested a hearing contending that the claimant should be disqualified from receiving benefits because of a loss of employment through misconduct in connection therewith.
The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the employer. By decision dated November 23, 1994 the Administrative Law Judge sustained the initial determination.
The employer appealed the judge’s decision to the Board.
Based on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant was employed as a probationary quality control technician from June 6, 1994 to August 17, 1994. The claimant had been warned several times about his tardiness, the last time being July 14, 1994. The claimant did not report to work after August 17, 1994, due to his addiction to alcohol and cocaine. He sought treatment for his condition. He entered a residential treatment program on August 18, 1994. He was discharged from his position because of his unsatisfactory attendance while on probation.
OPINION: The credible evidence establishes that the claimant lost his employment as a result of his unsatisfactory attendance. His last absence was caused at least in part by his use of cocaine, which is in violation of the law. The claimant admitted this at the hearing. In Matter of Kuehn, 174 AD 2d 776, aff’g Appeal Board No. 398,533A, the Court affirmed a decision of the Board which observed significant difference in the way alcoholism and drug addiction are judged by society and, consequently, how each is and should be viewed under New York State law. As procurement, possession, and use of a controlled substance constitutes criminal activity, the negative consequences of which can be reasonably foreseen, the claimant must bear the responsibility for his last absence.
The employer had a legitimate expectation that its employee would be present during scheduled hours of work. This record establishes that the claimant, while on probation and already having been warned about tardiness, was unable to meet this expectation due to his use of cocaine and alcohol. We will not, in the face of the claimant’s admission to use of cocaine, apportion the reason for his last absence between use of alcohol and use of cocaine where there is evidence of both. So long as his course of conduct, culminating in his failure to report for work, is clearly attributable to voluntary use of cocaine, we find that he lost his employment through misconduct in connection therewith. The claimant should, therefore, be disqualified from receiving benefits. The disqualification is effective August 18, 1994.
DECISION: The initial determination of the local office is overruled.
The decision of the Administrative Law Judge is reversed."
Monday, April 16, 2012
NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS
I note the difference the DOL makes between alcoholism and drug addiction:
"A-750-2030
INDEX 1152-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January , 1991
INTERPRETATION SERVICE-BENEFIT CLAIMS
MISCONDUCT
ALCOHOL AND DRUGS
MISCONDUCT -CONTROLLED SUBSTANCE
Claimant's misconduct in connection with his employment may not be excused by dependence on a controlled substance because, unlike alcoholism, the use of such substance is subject to strict legal prohibitions against possession and sale, and the negative consequences of its use can or should be reasonably foreseen.
AB 398,533A
FINDINGS OF FACT: The claimant, an advertising account executive worked for a cable television company from March 2, 1987 until October 31, 1988. For the first 15 months of claimant's employment, the cable company found his job performance satisfactory. In May, 1988, claimant began using cocaine during his weekends off from work. Initially claimant used between one half gram to a gram each weekend. However, by June or July, 1988, claimant had graduated to daily use, and was taking from three to seven grams a day. Claimant subsequently started "free-basing" the drug for a more intense high. As a result of his cocaine use, claimant experienced long periods of sleeplessness, high blood pressure, extreme nervousness, sweating, and hallucination.
Claimant's job performance began to decline dramatically due to the effects of the drug. Claimant missed appointments with clients, failed to show at staff meetings, was frequently absent without notice, handled his business records carelessly, and failed to meet sales quotas.
On several occasions, the employer spoke to the claimant regarding his failure to perform his job satisfactorily and about his poor attendance. During these discussions, claimant blamed his difficulties on family problems, never mentioning his cocaine usage. By October 28, 1988, the employer was prepared to give the claimant a final warning because of poor work performance and attendance. Claimant was notified that a meeting was set for that day to discuss these topics. However, because he had been using cocaine heavily, and was suffering from its effects, claimant did not go to work on October 28 and did not call the employer to explain his absence. The employer thereafter discharged the claimant for his failure to attend the meeting and his overall work record.
OPINION: It is the public policy of New York State, as set forth in Title 18 of the Labor Law, that unemployment benefits be paid only to those persons "who are unemployed through no fault of their own." Labor Law, Section 501. Pursuant to this policy, Section 593 of the Law provides that a claimant will be disqualified from receiving benefits due to a loss of employment through misconduct in connection, therewith. In construing the statute, it is the task of the Appeal Board to determine whether a claimants loss of employment can be ascribed to his own acts of commission or omission in connection with his employment, which acts constitute misconduct, or should be attributed to reasons beyond the claimant's control and therefore excused.
The Appeal Board has long held that loss of employment due to failure to report to work as scheduled or failure to perform one's job duties, without compelling reason in either instance, is misconduct under the Law and will result in a claimant's disqualification from receiving unemployment insurance benefits (Matter of Goldfarb, 52 AD 2d 965, aff'g Appeal Board 212,765; Matter of Bossert, 53 AD 2d 742, aff'g Appeal Board 205,651). The Board has also held hat such misconduct can be excused where the claimant was absent due to illness which prevented his appearance at work or where a claimant was too sick to ,carry out his work assignment (Matter of Overt, 50 AD 2d 659, aff'g, Appeal Board 202,343; Matter of Sunderland, 121 AD 2d 779, aff'g Appeal Board 361,649)
In view of expert medical opinion which considers alcoholism a disease, the Board expanded this concept to include alcohol addiction as an illness which would excuse some, otherwise disqualifying acts, (Matter of Francis, 56 NY 2d 600, aff'g Appeal Board 293,620). However, while the Court has approved this approach, certain limitations have been placed upon its application. It has been expressly held by the Court that a claimant suffering from alcoholism is not incapable of committing misconduct in connection with employment (Matter of Gaiser, 82 AD 2d 629, rev'g Appeal Board 317,468). Therefore, not-all disqualifying acts would be excused as a result of the condition (e.g. illegal acts in connection with a job or other acts which, concededly legal, might foreseeably have serious negative consequences for the employer). Furthermore, a claimant alleging that he suffers from this condition must produce competent medical evidence to support his contention as well as evidence that the condition directly resulted in the act of misconduct (Matter of Moore, 144 AD2 123, aff'g Appeal Board 376,380; Matter of Allen, 162 AD 2d 753, June 14, 1990, aff'g Appeal Board 370,379.) The Courts have also mandated that any eligibility should be subject to a continuing review of claimant's capability for work (see Gaiser at 630).
Although the net result of these limitations is to more clearly define the reach of the Board's original concept, we believe our approach was and is a rational one. Although the effects of the misuse of alcohol are well documented and tragic, the mere use of this substance is not subject to widespread condemnation and, in moderation, is generally approved. The government, both state and federal, imposes few sanctions against the use, sale, and possession of alcoholic beverages; such restrictions that exist usually involve age limitations on consumption and driving while under the influence of alcohol.
In the case before us we are faced with the question of whether the Board's previously discussed rulings on alcoholism should be expanded to include drug addiction. The evidence establishes that claimant was discharged from his employment as a result of his failure to perform his job duties and, specifically, for his last absence from work on October 28, 1988. The claimant was absent that final day and had been unable to do his work consistently due to the detrimental effects of cocaine usage. The claimant contends that his omissions should be excused because they were the result of drug dependency which is an addictive illness, like alcoholism, and therefore beyond his control.
While we do not question that claimant suffers from drug addiction and that the acts which caused him to be discharged were themselves caused by the addiction, we do not agree with claimant's contention. Although we recognize some similarity between the conditions of alcoholism and drug dependency, we find significant differences in the way each condition is judged by society, and consequently, how each is, and should be viewed under New York State law. These differences affect the Board's consideration of the claimant's contention and mandate a different outcome in a case involving drug addiction than that found in our previous decisions involving alcoholism.
With respect to claimant's argument that drug dependency and alcohol addiction are essentially the same, we have already noted that the use of alcohol is largely approved, while the use, sale, and possession of non-prescription controlled substances are almost universally condemned. Vast amounts of money are appropriated on federal, state, and local governmental levels in an effort to prevent the sale and distribution of these substances because of the recognized deleterious effects across all socioeconomic levels of the country. Among the more dramatic consequences of the abuse of controlled substances are drug related deaths, crime among youth, decline in economic productivity, and dissolution of the family. While some of these effects may also be associated with alcoholism, the improper use of controlled substances is considered to pose a far more serious health hazard due to the greater likelihood of addiction and the resultant more destructive impact on society ("use in moderation" is not likely). As a result, the use of these substances is subject to stringent legal prohibitions against possession and sale. It is clear that the two conditions under review are not identical in nature or consequences. We cannot, in view of clear governmental policy deploring the abuse of controlled substances, accord the same legal consideration under the Labor Law to drug dependency as that given to alcohol addiction.
As we have determined not to extend our rulings to cases involving the improper use of controlled substances, we must determine whether claimant's acts which resulted in his discharge constituted misconduct in connection with his employment.
We consider it axiomatic that an employer has a legitimate expectation that its employees will be present during their scheduled hours of work and be capable of performing their duties as effectively as possible. In this case, the record establishes that claimant was unable to meet this expectation for reasons he contended were beyond his control. We believe that given the extensive education on the problem of drug addiction, and the many public and private sector efforts to prevent the spread of drug abuse, few people can be unaware of the perils of using a controlled substance. We believe it is reasonably foreseeable that even an occasional use of drugs such as cocaine could result in addiction and a resulting detrimental effect on every aspect of a person's life, including employment. A person who voluntarily engages in such activity, which might eventually cause a decline in attendance and work performance, must bear some responsibility for his decision. As a loss of employment under these circumstances would be due to the claimant's own act, and was a reasonably foreseeable consequence of that act, such loss of employment is considered to be for misconduct.
Accordingly, with respect to the claimant in this case, we set forth the following conclusions:
Claimant is, by his own admission, suffering from a drug addiction.
In order to become addicted, claimant had to have engaged by his own choice in the use of a controlled substance.
Claimant makes no contention that such use was in any way approved.
Claimant's acts, which caused his discharge, namely, his absence and poor job performance, were a consequence of his decision to use a controlled substance.
The personal consequences of the act of using a controlled substance were reasonably foreseeable. Claimant knew or should have known that such an act could. lead to the deterioration of his employment relationship and possible loss of job. Thus, claimant's subsequent acts or omissions with respect to his job cannot be excused by his addiction.
Under these circumstances, we conclude that claimant's course of conduct, which began with his voluntary use of cocaine and culminated in an overall decline in job performance and failure to appear for work, was not that of a reasonable and prudent person who desired to protect his employment. We find that, in view of public policy which strongly deplores this activity, claimant's conduct cannot be excused by his addiction and constituted misconduct in connection with his employment. To the extent that this decision is inconsistent with any of the Board's prior rulings, they will no longer be followed.
DECISION: The decisions of the Board filed May 24, 1989 (Appeal Board 392,989) and filed August 18, 1989 (Appeal Board 393,976A), are hereby rescinded.
The initial determination of the local office is overruled.
The employer's objection is sustained. The claimant is disqualified, from receiving benefits effective October 31, 1988 because he lost his employment through misconduct in connection therewith. Claimant is disqualified until he has worked three days in each of five weeks and earned five times his weekly benefit rate. Self-employment and earnings therefrom will not count.
The decision of the administrative law judge is affirmed
COMMENT
An exception to this rule may arise if a claimant alleges that his/her substance dependence resulted from "involuntary" use of drugs (i.e., treatment in a hospital). In such case, evidence to support this contention should be required. In addition, evidence of claimant's efforts to cure the dependence would be necessary in light of the Appeal Board's findings regarding the consequences of drug use."
"A-750-2030
INDEX 1152-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January , 1991
INTERPRETATION SERVICE-BENEFIT CLAIMS
MISCONDUCT
ALCOHOL AND DRUGS
MISCONDUCT -CONTROLLED SUBSTANCE
Claimant's misconduct in connection with his employment may not be excused by dependence on a controlled substance because, unlike alcoholism, the use of such substance is subject to strict legal prohibitions against possession and sale, and the negative consequences of its use can or should be reasonably foreseen.
AB 398,533A
FINDINGS OF FACT: The claimant, an advertising account executive worked for a cable television company from March 2, 1987 until October 31, 1988. For the first 15 months of claimant's employment, the cable company found his job performance satisfactory. In May, 1988, claimant began using cocaine during his weekends off from work. Initially claimant used between one half gram to a gram each weekend. However, by June or July, 1988, claimant had graduated to daily use, and was taking from three to seven grams a day. Claimant subsequently started "free-basing" the drug for a more intense high. As a result of his cocaine use, claimant experienced long periods of sleeplessness, high blood pressure, extreme nervousness, sweating, and hallucination.
Claimant's job performance began to decline dramatically due to the effects of the drug. Claimant missed appointments with clients, failed to show at staff meetings, was frequently absent without notice, handled his business records carelessly, and failed to meet sales quotas.
On several occasions, the employer spoke to the claimant regarding his failure to perform his job satisfactorily and about his poor attendance. During these discussions, claimant blamed his difficulties on family problems, never mentioning his cocaine usage. By October 28, 1988, the employer was prepared to give the claimant a final warning because of poor work performance and attendance. Claimant was notified that a meeting was set for that day to discuss these topics. However, because he had been using cocaine heavily, and was suffering from its effects, claimant did not go to work on October 28 and did not call the employer to explain his absence. The employer thereafter discharged the claimant for his failure to attend the meeting and his overall work record.
OPINION: It is the public policy of New York State, as set forth in Title 18 of the Labor Law, that unemployment benefits be paid only to those persons "who are unemployed through no fault of their own." Labor Law, Section 501. Pursuant to this policy, Section 593 of the Law provides that a claimant will be disqualified from receiving benefits due to a loss of employment through misconduct in connection, therewith. In construing the statute, it is the task of the Appeal Board to determine whether a claimants loss of employment can be ascribed to his own acts of commission or omission in connection with his employment, which acts constitute misconduct, or should be attributed to reasons beyond the claimant's control and therefore excused.
The Appeal Board has long held that loss of employment due to failure to report to work as scheduled or failure to perform one's job duties, without compelling reason in either instance, is misconduct under the Law and will result in a claimant's disqualification from receiving unemployment insurance benefits (Matter of Goldfarb, 52 AD 2d 965, aff'g Appeal Board 212,765; Matter of Bossert, 53 AD 2d 742, aff'g Appeal Board 205,651). The Board has also held hat such misconduct can be excused where the claimant was absent due to illness which prevented his appearance at work or where a claimant was too sick to ,carry out his work assignment (Matter of Overt, 50 AD 2d 659, aff'g, Appeal Board 202,343; Matter of Sunderland, 121 AD 2d 779, aff'g Appeal Board 361,649)
In view of expert medical opinion which considers alcoholism a disease, the Board expanded this concept to include alcohol addiction as an illness which would excuse some, otherwise disqualifying acts, (Matter of Francis, 56 NY 2d 600, aff'g Appeal Board 293,620). However, while the Court has approved this approach, certain limitations have been placed upon its application. It has been expressly held by the Court that a claimant suffering from alcoholism is not incapable of committing misconduct in connection with employment (Matter of Gaiser, 82 AD 2d 629, rev'g Appeal Board 317,468). Therefore, not-all disqualifying acts would be excused as a result of the condition (e.g. illegal acts in connection with a job or other acts which, concededly legal, might foreseeably have serious negative consequences for the employer). Furthermore, a claimant alleging that he suffers from this condition must produce competent medical evidence to support his contention as well as evidence that the condition directly resulted in the act of misconduct (Matter of Moore, 144 AD2 123, aff'g Appeal Board 376,380; Matter of Allen, 162 AD 2d 753, June 14, 1990, aff'g Appeal Board 370,379.) The Courts have also mandated that any eligibility should be subject to a continuing review of claimant's capability for work (see Gaiser at 630).
Although the net result of these limitations is to more clearly define the reach of the Board's original concept, we believe our approach was and is a rational one. Although the effects of the misuse of alcohol are well documented and tragic, the mere use of this substance is not subject to widespread condemnation and, in moderation, is generally approved. The government, both state and federal, imposes few sanctions against the use, sale, and possession of alcoholic beverages; such restrictions that exist usually involve age limitations on consumption and driving while under the influence of alcohol.
In the case before us we are faced with the question of whether the Board's previously discussed rulings on alcoholism should be expanded to include drug addiction. The evidence establishes that claimant was discharged from his employment as a result of his failure to perform his job duties and, specifically, for his last absence from work on October 28, 1988. The claimant was absent that final day and had been unable to do his work consistently due to the detrimental effects of cocaine usage. The claimant contends that his omissions should be excused because they were the result of drug dependency which is an addictive illness, like alcoholism, and therefore beyond his control.
While we do not question that claimant suffers from drug addiction and that the acts which caused him to be discharged were themselves caused by the addiction, we do not agree with claimant's contention. Although we recognize some similarity between the conditions of alcoholism and drug dependency, we find significant differences in the way each condition is judged by society, and consequently, how each is, and should be viewed under New York State law. These differences affect the Board's consideration of the claimant's contention and mandate a different outcome in a case involving drug addiction than that found in our previous decisions involving alcoholism.
With respect to claimant's argument that drug dependency and alcohol addiction are essentially the same, we have already noted that the use of alcohol is largely approved, while the use, sale, and possession of non-prescription controlled substances are almost universally condemned. Vast amounts of money are appropriated on federal, state, and local governmental levels in an effort to prevent the sale and distribution of these substances because of the recognized deleterious effects across all socioeconomic levels of the country. Among the more dramatic consequences of the abuse of controlled substances are drug related deaths, crime among youth, decline in economic productivity, and dissolution of the family. While some of these effects may also be associated with alcoholism, the improper use of controlled substances is considered to pose a far more serious health hazard due to the greater likelihood of addiction and the resultant more destructive impact on society ("use in moderation" is not likely). As a result, the use of these substances is subject to stringent legal prohibitions against possession and sale. It is clear that the two conditions under review are not identical in nature or consequences. We cannot, in view of clear governmental policy deploring the abuse of controlled substances, accord the same legal consideration under the Labor Law to drug dependency as that given to alcohol addiction.
As we have determined not to extend our rulings to cases involving the improper use of controlled substances, we must determine whether claimant's acts which resulted in his discharge constituted misconduct in connection with his employment.
We consider it axiomatic that an employer has a legitimate expectation that its employees will be present during their scheduled hours of work and be capable of performing their duties as effectively as possible. In this case, the record establishes that claimant was unable to meet this expectation for reasons he contended were beyond his control. We believe that given the extensive education on the problem of drug addiction, and the many public and private sector efforts to prevent the spread of drug abuse, few people can be unaware of the perils of using a controlled substance. We believe it is reasonably foreseeable that even an occasional use of drugs such as cocaine could result in addiction and a resulting detrimental effect on every aspect of a person's life, including employment. A person who voluntarily engages in such activity, which might eventually cause a decline in attendance and work performance, must bear some responsibility for his decision. As a loss of employment under these circumstances would be due to the claimant's own act, and was a reasonably foreseeable consequence of that act, such loss of employment is considered to be for misconduct.
Accordingly, with respect to the claimant in this case, we set forth the following conclusions:
Claimant is, by his own admission, suffering from a drug addiction.
In order to become addicted, claimant had to have engaged by his own choice in the use of a controlled substance.
Claimant makes no contention that such use was in any way approved.
Claimant's acts, which caused his discharge, namely, his absence and poor job performance, were a consequence of his decision to use a controlled substance.
The personal consequences of the act of using a controlled substance were reasonably foreseeable. Claimant knew or should have known that such an act could. lead to the deterioration of his employment relationship and possible loss of job. Thus, claimant's subsequent acts or omissions with respect to his job cannot be excused by his addiction.
Under these circumstances, we conclude that claimant's course of conduct, which began with his voluntary use of cocaine and culminated in an overall decline in job performance and failure to appear for work, was not that of a reasonable and prudent person who desired to protect his employment. We find that, in view of public policy which strongly deplores this activity, claimant's conduct cannot be excused by his addiction and constituted misconduct in connection with his employment. To the extent that this decision is inconsistent with any of the Board's prior rulings, they will no longer be followed.
DECISION: The decisions of the Board filed May 24, 1989 (Appeal Board 392,989) and filed August 18, 1989 (Appeal Board 393,976A), are hereby rescinded.
The initial determination of the local office is overruled.
The employer's objection is sustained. The claimant is disqualified, from receiving benefits effective October 31, 1988 because he lost his employment through misconduct in connection therewith. Claimant is disqualified until he has worked three days in each of five weeks and earned five times his weekly benefit rate. Self-employment and earnings therefrom will not count.
The decision of the administrative law judge is affirmed
COMMENT
An exception to this rule may arise if a claimant alleges that his/her substance dependence resulted from "involuntary" use of drugs (i.e., treatment in a hospital). In such case, evidence to support this contention should be required. In addition, evidence of claimant's efforts to cure the dependence would be necessary in light of the Appeal Board's findings regarding the consequences of drug use."
Friday, April 13, 2012
NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS
In one matter in which I represented the claimant, the ALJ overruled the DOL's adverse determination of misconduct recognizing that alcoholism, as a disease, was an affirmative defense to the allegation of misconduct. The issue of availability and/or capability for work did not become an issue as the claimant, prior to the hearing, had entered rehab, was in a recovery program for alcoholism and had several months of sobriety.
Thursday, April 12, 2012
NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS
Note in this case, the DOL recognizes that alcoholism, as a disease, may be an affirmative defense to the issue of misconduct but also may raise additional issues re: availability for work, etc.
"A-750-2040
INDEX 1125-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August, 1991
INTERPRETATION SERVICE-BENEFIT CLAIMS
MISCONDUCT
Alcohol
ALCOHOLISM -REPORTING TO WORK
A discharge for reporting to work intoxicated is not misconduct if the claimant is an alcoholic whose drinking is beyond his control.
AB 191,630
FINDINGS OF FACT: Claimant, a maintenance man, worked for a hospital for approximately 5 1/2 years until October 29, 1973. At various times during the period of his employment claimant reported for work in an intoxicated condition or with the smell of liquor on his breath. The employer tried to assist him with his drinking problem. The employer suggested that if it deducted $25 a week from his salary and deposited it in a savings account for him, he would not have enough money to drink. On November 17, 1970, the claimant acknowledged that he had been spending all his money on drink and authorized the employer to deduct $25 a week from his salary and save it for him. The claimant was repeatedly warned that if he continued to report to work smelling of liquor, he would be discharged. On October 29, 1973, he reported for work in an intoxicated condition and was sent home. When he reported on the following day in the same condition, the employer terminated his employment on October 31, 1973. The claimant is an alcoholic, who tried to overcome his condition, but was unable to do so.
OPINION: Alcoholism is a disease. The claimant is an alcoholic and was sick during the period of his employment. Although he made an effort to overcome his addiction to alcohol, he was unable to do so. The employer tried to help claimant to stop his drinking, but did not meet with success. Claimant lost his employment because he reported to work in an intoxicated condition. Since it appears that his drinking was beyond his control and he was unable to overcome his illness, we conclude that claimant did not deliberately provoke his discharge, nor did he voluntarily leave his employment.
However, the matter of claimant's availability for and capability of employment should be referred to the insurance office for investigation and determination.
DECISION: The initial determination of the Local office is overruled.
The decision of the referee is affirmed.
The matter of claimant's availability for and capability of employment is referred to the insurance office for investigation and determination.
COMMENTS
1. Although this case was decided under the provoked discharge theory which was greatly restricted by Matter of James 34 NY2d 491; (A-750-1775), the principle that such an action is not misconduct remains valid. The causal connection between claimant's illness and his action is clear.
2. This case was previously reported under Index 1125-2 without an A-750 release in support of that rule."
"A-750-2040
INDEX 1125-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August, 1991
INTERPRETATION SERVICE-BENEFIT CLAIMS
MISCONDUCT
Alcohol
ALCOHOLISM -REPORTING TO WORK
A discharge for reporting to work intoxicated is not misconduct if the claimant is an alcoholic whose drinking is beyond his control.
AB 191,630
FINDINGS OF FACT: Claimant, a maintenance man, worked for a hospital for approximately 5 1/2 years until October 29, 1973. At various times during the period of his employment claimant reported for work in an intoxicated condition or with the smell of liquor on his breath. The employer tried to assist him with his drinking problem. The employer suggested that if it deducted $25 a week from his salary and deposited it in a savings account for him, he would not have enough money to drink. On November 17, 1970, the claimant acknowledged that he had been spending all his money on drink and authorized the employer to deduct $25 a week from his salary and save it for him. The claimant was repeatedly warned that if he continued to report to work smelling of liquor, he would be discharged. On October 29, 1973, he reported for work in an intoxicated condition and was sent home. When he reported on the following day in the same condition, the employer terminated his employment on October 31, 1973. The claimant is an alcoholic, who tried to overcome his condition, but was unable to do so.
OPINION: Alcoholism is a disease. The claimant is an alcoholic and was sick during the period of his employment. Although he made an effort to overcome his addiction to alcohol, he was unable to do so. The employer tried to help claimant to stop his drinking, but did not meet with success. Claimant lost his employment because he reported to work in an intoxicated condition. Since it appears that his drinking was beyond his control and he was unable to overcome his illness, we conclude that claimant did not deliberately provoke his discharge, nor did he voluntarily leave his employment.
However, the matter of claimant's availability for and capability of employment should be referred to the insurance office for investigation and determination.
DECISION: The initial determination of the Local office is overruled.
The decision of the referee is affirmed.
The matter of claimant's availability for and capability of employment is referred to the insurance office for investigation and determination.
COMMENTS
1. Although this case was decided under the provoked discharge theory which was greatly restricted by Matter of James 34 NY2d 491; (A-750-1775), the principle that such an action is not misconduct remains valid. The causal connection between claimant's illness and his action is clear.
2. This case was previously reported under Index 1125-2 without an A-750 release in support of that rule."
Wednesday, April 11, 2012
NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS
With respect to alcoholism, note the floowing case and the comment:
"A-750-1813
Index 1125-2
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
July 1, 1976
Interpretation Service -Benefit Claims
MISCONDUCT
Alcohol
Appeal Board Decision 220, 961
REPORTING TO WORK DRUNK
Reporting to work in an inebriated condition is misconduct, whether or not there has been a warning to that effect.
Referee decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective October 23, 1975 because he lost his employment through misconduct in connection therewith, is overruled.
Appealed by: Industrial Commissioner and employer
Findings of fact: Claimant worked as a credit assistant for approximately one and a half years until October 22, 1975. On that date claimant reported to work under the influence of alcohol. He was unable to work and went home. He was discharged the following day when he reported to work.
Opinion: The evidence establishes that claimant was discharged because he reported to work drunk and was unable to perform his duties. We disagree with the referee's conclusion that because claimant had not been warned about reporting to work in such condition it is not disqualifying. Reporting to work in an admittedly inebriated condition is misconduct in connection with one's employment, whether or not there has been a warning to that effect. Therefore, claimant lost his employment due to misconduct in connection therewith.
Decision: The initial determination of the local office is sustained.
The decision of the referee, insofar as appealed from, is reversed. (June 2, 1976)
COMMENTS
Please note that no disqualification applies to a discharge under these circumstances if the claimant is a chronic alcoholic whose drinking is beyond his control."
"A-750-1813
Index 1125-2
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
July 1, 1976
Interpretation Service -Benefit Claims
MISCONDUCT
Alcohol
Appeal Board Decision 220, 961
REPORTING TO WORK DRUNK
Reporting to work in an inebriated condition is misconduct, whether or not there has been a warning to that effect.
Referee decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective October 23, 1975 because he lost his employment through misconduct in connection therewith, is overruled.
Appealed by: Industrial Commissioner and employer
Findings of fact: Claimant worked as a credit assistant for approximately one and a half years until October 22, 1975. On that date claimant reported to work under the influence of alcohol. He was unable to work and went home. He was discharged the following day when he reported to work.
Opinion: The evidence establishes that claimant was discharged because he reported to work drunk and was unable to perform his duties. We disagree with the referee's conclusion that because claimant had not been warned about reporting to work in such condition it is not disqualifying. Reporting to work in an admittedly inebriated condition is misconduct in connection with one's employment, whether or not there has been a warning to that effect. Therefore, claimant lost his employment due to misconduct in connection therewith.
Decision: The initial determination of the local office is sustained.
The decision of the referee, insofar as appealed from, is reversed. (June 2, 1976)
COMMENTS
Please note that no disqualification applies to a discharge under these circumstances if the claimant is a chronic alcoholic whose drinking is beyond his control."
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."
"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."
Monday, April 9, 2012
NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS
Here is an important case that the DOL recognizes regarding diability and misconduct:
"A-750-2135 Index 1105 C1; 1170.6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
March, 2011
INTERPRETATION SERVICE-BENEFIT CLAIMS
SLEEPING ON THE JOB
A claimant discharged for falling asleep on the job is not subject to disqualification when his sleeping is caused by a medication prescribed for his chronic medical condition, and when the employer who has knowledge of claimant’s medical condition, condoned claimant’s behavior in the past.
A.B. 545303
The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective November 13, 2008, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by ONEIDA INDIAN NATION OF NY prior to November 13, 2008, cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing.
The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the employer. By decision filed March 2, 2009 (A.L.J. Case No. 109-00124), the Administrative Law Judge sustained the initial determination.
The claimant appealed the Judge’s decision to the Appeal Board. The Board considered the arguments contained in the written statement submitted on behalf of the claimant.
Based on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant was employed as a cashier in a convenient store from January 9, 2008 until November 12, 2008. The claimant worked full time on the third shift which ran from 9:30 p.m. until 5:30 a.m. The claimant was diagnosed with diabetes and his medical practitioner was trying to regulate his condition with different medications. As a result the claimant suffered from dizziness and fatigue. The claimant’s supervisors were aware of his condition and the claimant had been told that when he was dizzy or fatigued he could sit down and have something to eat or drink. On claimant’s last day of work, the claimant’s new supervisor saw claimant sleeping during his shift. He was snoring and drooling. She took a picture of him on her cell phone. He was holding a coffee cup which was drooping in his hand. She made several attempts to wake the claimant. The claimant had felt dizzy and fatigued that evening and had sat down as previously directed. There was a customer complaint. The supervisor reported claimant to management and he was discharged. Claimant also worked a second job as a driver from 7:00 a.m. until 1:00 p.m. This was not the first time that management, including the new supervisor, knew of claimant falling asleep on the job.
OPINION: The credible evidence establishes that the claimant was discharged for sleeping on the job. We do not find it credible that the claimant was not sleeping. We note that the employer has presented a picture showing claimant to be asleep, with his coffee cup at a drooping angle. However, we further accept as credible the claimant’s contention that he suffers from diabetes and as a result of the disease and medication changes he suffers from dizziness and fatigue. We further accept as credible his contention that his supervisors were aware of his condition and attendant problems and that it had been suggested to him that when he felt like this he was to sit down. We further note that the claimant’s supervisors had known that claimant had fallen asleep in the past but that claimant was not discharged until there was a customer complaint. The employer’s failure to address the claimant’s problem on prior occasions is considered to be a condonation of this action, and given the circumstances of this case we conclude that the claimant did not commit an act of misconduct when he fell asleep during his shift.
DECISION: The decision of the Administrative Law Judge is reversed.
The initial determination is overruled.
The claimant is allowed benefits with respect to the issues decided herein.
COMMENT
The Appeal Board’s decision in this case represents an exception to the general rule that sleeping on the job is misconduct. In this case the claimant’s sleepiness was caused by a medical condition beyond his control. In addition, the employer’s apparent condoning of his behavior in the past left the claimant with no way of knowing that his job was in jeopardy."
"A-750-2135 Index 1105 C1; 1170.6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
March, 2011
INTERPRETATION SERVICE-BENEFIT CLAIMS
SLEEPING ON THE JOB
A claimant discharged for falling asleep on the job is not subject to disqualification when his sleeping is caused by a medication prescribed for his chronic medical condition, and when the employer who has knowledge of claimant’s medical condition, condoned claimant’s behavior in the past.
A.B. 545303
The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective November 13, 2008, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by ONEIDA INDIAN NATION OF NY prior to November 13, 2008, cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing.
The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the employer. By decision filed March 2, 2009 (A.L.J. Case No. 109-00124), the Administrative Law Judge sustained the initial determination.
The claimant appealed the Judge’s decision to the Appeal Board. The Board considered the arguments contained in the written statement submitted on behalf of the claimant.
Based on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant was employed as a cashier in a convenient store from January 9, 2008 until November 12, 2008. The claimant worked full time on the third shift which ran from 9:30 p.m. until 5:30 a.m. The claimant was diagnosed with diabetes and his medical practitioner was trying to regulate his condition with different medications. As a result the claimant suffered from dizziness and fatigue. The claimant’s supervisors were aware of his condition and the claimant had been told that when he was dizzy or fatigued he could sit down and have something to eat or drink. On claimant’s last day of work, the claimant’s new supervisor saw claimant sleeping during his shift. He was snoring and drooling. She took a picture of him on her cell phone. He was holding a coffee cup which was drooping in his hand. She made several attempts to wake the claimant. The claimant had felt dizzy and fatigued that evening and had sat down as previously directed. There was a customer complaint. The supervisor reported claimant to management and he was discharged. Claimant also worked a second job as a driver from 7:00 a.m. until 1:00 p.m. This was not the first time that management, including the new supervisor, knew of claimant falling asleep on the job.
OPINION: The credible evidence establishes that the claimant was discharged for sleeping on the job. We do not find it credible that the claimant was not sleeping. We note that the employer has presented a picture showing claimant to be asleep, with his coffee cup at a drooping angle. However, we further accept as credible the claimant’s contention that he suffers from diabetes and as a result of the disease and medication changes he suffers from dizziness and fatigue. We further accept as credible his contention that his supervisors were aware of his condition and attendant problems and that it had been suggested to him that when he felt like this he was to sit down. We further note that the claimant’s supervisors had known that claimant had fallen asleep in the past but that claimant was not discharged until there was a customer complaint. The employer’s failure to address the claimant’s problem on prior occasions is considered to be a condonation of this action, and given the circumstances of this case we conclude that the claimant did not commit an act of misconduct when he fell asleep during his shift.
DECISION: The decision of the Administrative Law Judge is reversed.
The initial determination is overruled.
The claimant is allowed benefits with respect to the issues decided herein.
COMMENT
The Appeal Board’s decision in this case represents an exception to the general rule that sleeping on the job is misconduct. In this case the claimant’s sleepiness was caused by a medical condition beyond his control. In addition, the employer’s apparent condoning of his behavior in the past left the claimant with no way of knowing that his job was in jeopardy."
Friday, April 6, 2012
Thursday, April 5, 2012
NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS
With respect to misconduct, I first note that the DOL has taken the position that a false statement on an employment application made to conceal an illness or disability (epilepsy) constitutes misconduct.
"Index 1150-A2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May 10, 1971
INTERPRETATION SERVICE -BENEFIT CLAIMS
MISCONDUCT
Falsification of employment application
Appeal Board Decision 162,012
CONCEALMENT OF ILLNESS AT TIME OF HIRE
A false statement on an employment application made to conceal an illness or disability (epilepsy) constitutes misconduct.
Referee's decision: The initial determinations of the local office disqualifying claimant from receiving benefits effective August 6, 1970, because he lost his employment due to misconduct in connection with his employment and, in the alter- native, because he voluntarily left his employment without good cause by provoking his discharge, remain in effect because the claimant failed to request a hearing thereon within the statutory period.
Appealed by: Claimant
Findings of fact: Claimant, a tester desk man, worked for a public utility from February 16 through August 5, 1970. Prior to being hired, claimant executed a pre-placement medical questionnaire in which he stated, among other things, that he never had epilepsy. He certified thereon that his answers were true. In sub- mitting the subsequent employment application, claimant agreed that any false statement, misrepresentation or failure to disclose pertinent information made at any time during the employment procedure may be sufficient to result in his dismissal. On July 13, 1970, claimant became ill and was taken to the employer's medical department. On the following day, he admitted that his illness resulted from an epileptic seizure and that he has had epilepsy for many years. Claimant was discharged because of the false answer in his medical questionnaire.
Claimant filed an original claim for benefits effective August l0, 1970. On September 9, 1970, the local office mailed to claimant the initial determinations herein. Al though claimant did not immediately read the instructions regarding the request for a hearing he did so about two weeks later. On September 23, 1970, claimant appeared at the local office and requested a hearing.
Opinion: The credible evidence establishes that claimant made a request for a hearing on September 23, 1970, when he appeared at the local office. Such request was made within the period prescribed by the statute and was timely. Accordingly we must consider the merits of the initial determinations issued herein. The evidence establishes that claimant submitted false medical information in connection with his application for employment. Admittedly he concealed the fact that he had suffered from epilepsy for many years. His reason for doing so, i. e. in the past, whenever he told tile truth he was not hired, does not justify such concealment. Falsification of his application for employment constituted misconduct in connection with his employment.
Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective August 1910, because he lost his employment due to misconduct in connection with his employment is sustained.
The decision of the referee is reversed. (February 16,1971)."
"Index 1150-A2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May 10, 1971
INTERPRETATION SERVICE -BENEFIT CLAIMS
MISCONDUCT
Falsification of employment application
Appeal Board Decision 162,012
CONCEALMENT OF ILLNESS AT TIME OF HIRE
A false statement on an employment application made to conceal an illness or disability (epilepsy) constitutes misconduct.
Referee's decision: The initial determinations of the local office disqualifying claimant from receiving benefits effective August 6, 1970, because he lost his employment due to misconduct in connection with his employment and, in the alter- native, because he voluntarily left his employment without good cause by provoking his discharge, remain in effect because the claimant failed to request a hearing thereon within the statutory period.
Appealed by: Claimant
Findings of fact: Claimant, a tester desk man, worked for a public utility from February 16 through August 5, 1970. Prior to being hired, claimant executed a pre-placement medical questionnaire in which he stated, among other things, that he never had epilepsy. He certified thereon that his answers were true. In sub- mitting the subsequent employment application, claimant agreed that any false statement, misrepresentation or failure to disclose pertinent information made at any time during the employment procedure may be sufficient to result in his dismissal. On July 13, 1970, claimant became ill and was taken to the employer's medical department. On the following day, he admitted that his illness resulted from an epileptic seizure and that he has had epilepsy for many years. Claimant was discharged because of the false answer in his medical questionnaire.
Claimant filed an original claim for benefits effective August l0, 1970. On September 9, 1970, the local office mailed to claimant the initial determinations herein. Al though claimant did not immediately read the instructions regarding the request for a hearing he did so about two weeks later. On September 23, 1970, claimant appeared at the local office and requested a hearing.
Opinion: The credible evidence establishes that claimant made a request for a hearing on September 23, 1970, when he appeared at the local office. Such request was made within the period prescribed by the statute and was timely. Accordingly we must consider the merits of the initial determinations issued herein. The evidence establishes that claimant submitted false medical information in connection with his application for employment. Admittedly he concealed the fact that he had suffered from epilepsy for many years. His reason for doing so, i. e. in the past, whenever he told tile truth he was not hired, does not justify such concealment. Falsification of his application for employment constituted misconduct in connection with his employment.
Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective August 1910, because he lost his employment due to misconduct in connection with his employment is sustained.
The decision of the referee is reversed. (February 16,1971)."
Wednesday, April 4, 2012
NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS
The DOL has recognized that disability creates issues regarding avilability for work. Thus, a claimant mught be eligible for benefits but the disability disqualifies the claimant because the claimant is no longer available for work:
"Illness and disability
Where inability to call on prospective employer was due to illness, benefit rights were suspended for incapability and not for refusal. (A.B. 916-39; A.B. 1397-39)
Illness between reporting periods resulted in suspension of benefit rights for incapability. (A.B. 594-39)
To maintain his eligible status, claimant must be capable of and available for employment, regardless of whether or not there were jobs actually available in his trade during that period. (A.B. 982-39)
Claimant, afflicted with a mental illness, whose only work experience was with the aid and help of his brother during the canning season and who refused to accept other canning jobs, was held to be incapable of performing work which there was a reasonable possibility of’ obtaining. (A.B. 11,759-45; A-750-642)
Claimant, who entered convalescent home to rebuild his health and was not permitted to leave the grounds under penalty of expulsion, was both incapable and unavailable. (A.B. 3065-40; A-750-187)
Entering a veterans’ domiciliary home for a rest and on the basis of proving inability to work established unavailability. (A.B. 11,963-45; A-750-664; similarly A.B. 25,333-50)
A claimant with a serious heart ailment which caused him to be retired by employer on disability pension and Physical incapability to perform usual work and preference for a job at a salary which there was no reasonable probability of obtaining constituted unavailability. (A.B. 1311-39; A-750-4)
Physical incapability to perform usual work and preference for a job at a salary which there was no reasonable probability of obtaining constituted unavailability. (A.B. 7747-42; A-750-383)
Physical inability to perform usual work as a machine presser did not disqualify a claimant who was ready, willing, and able to perform sedentary work, which reasonably was obtainable. (A.B. 9745-43; A-750-501)
Handicapped workers were capable of employment if they were able to perform some work, which there was a reasonable probability of obtaining. Reasonable probability did not mean that there must be actual placement opportunities in existence at the time. (A.B. 1160-39; similarly, A.B. 966-39)
A notification from the United States Employment Service that claimant was unplaceable in employment, based on a medical report that claimant was not able to work, was held not controlling and insufficient to support a determination of incapability, where the evidence established that claimant had a work history of protracted employment, demonstrating his ability to perform work and remain in the labor market despite his affliction with Parkinson's disease.
NOTE: There was no evidence to show that such employment as claimant had, had been, or would be injurious to his health. (A.B. 12,317-45)
Where claimant, a carpenter, suffered from pulmonary tuberculosis but desired light work of any kind and demonstrated his physical ability to work full time prior to and subsequent to filing for benefits, despite his physician's statement that he needed a complete rest for an indefinite period of time and suggestion that he work only three or four hours a day, (statements not quite consistent in themselves) it was concluded that he was available for and capable of employment.
NOTE: The doctor’s statement was not an unequivocal assertion that work would be injurious to claimant’s health and was nullified to some extent by the fact that the doctor himself employed the claimant after making the statement. (A.B. 13,159-46; A-750-771)
(a) Discharge for pilfering is not disqualifying when such conduct stems from a psychiatric disorder manifested by a compulsion to steal.
(b) A claimant discharged under such circumstances is incapable of employment in the absence of medical evidence that he is no longer suffering from the psychiatric disorder. (A.B. 191,103; A-750-1773)"
"Illness and disability
Where inability to call on prospective employer was due to illness, benefit rights were suspended for incapability and not for refusal. (A.B. 916-39; A.B. 1397-39)
Illness between reporting periods resulted in suspension of benefit rights for incapability. (A.B. 594-39)
To maintain his eligible status, claimant must be capable of and available for employment, regardless of whether or not there were jobs actually available in his trade during that period. (A.B. 982-39)
Claimant, afflicted with a mental illness, whose only work experience was with the aid and help of his brother during the canning season and who refused to accept other canning jobs, was held to be incapable of performing work which there was a reasonable possibility of’ obtaining. (A.B. 11,759-45; A-750-642)
Claimant, who entered convalescent home to rebuild his health and was not permitted to leave the grounds under penalty of expulsion, was both incapable and unavailable. (A.B. 3065-40; A-750-187)
Entering a veterans’ domiciliary home for a rest and on the basis of proving inability to work established unavailability. (A.B. 11,963-45; A-750-664; similarly A.B. 25,333-50)
A claimant with a serious heart ailment which caused him to be retired by employer on disability pension and Physical incapability to perform usual work and preference for a job at a salary which there was no reasonable probability of obtaining constituted unavailability. (A.B. 1311-39; A-750-4)
Physical incapability to perform usual work and preference for a job at a salary which there was no reasonable probability of obtaining constituted unavailability. (A.B. 7747-42; A-750-383)
Physical inability to perform usual work as a machine presser did not disqualify a claimant who was ready, willing, and able to perform sedentary work, which reasonably was obtainable. (A.B. 9745-43; A-750-501)
Handicapped workers were capable of employment if they were able to perform some work, which there was a reasonable probability of obtaining. Reasonable probability did not mean that there must be actual placement opportunities in existence at the time. (A.B. 1160-39; similarly, A.B. 966-39)
A notification from the United States Employment Service that claimant was unplaceable in employment, based on a medical report that claimant was not able to work, was held not controlling and insufficient to support a determination of incapability, where the evidence established that claimant had a work history of protracted employment, demonstrating his ability to perform work and remain in the labor market despite his affliction with Parkinson's disease.
NOTE: There was no evidence to show that such employment as claimant had, had been, or would be injurious to his health. (A.B. 12,317-45)
Where claimant, a carpenter, suffered from pulmonary tuberculosis but desired light work of any kind and demonstrated his physical ability to work full time prior to and subsequent to filing for benefits, despite his physician's statement that he needed a complete rest for an indefinite period of time and suggestion that he work only three or four hours a day, (statements not quite consistent in themselves) it was concluded that he was available for and capable of employment.
NOTE: The doctor’s statement was not an unequivocal assertion that work would be injurious to claimant’s health and was nullified to some extent by the fact that the doctor himself employed the claimant after making the statement. (A.B. 13,159-46; A-750-771)
(a) Discharge for pilfering is not disqualifying when such conduct stems from a psychiatric disorder manifested by a compulsion to steal.
(b) A claimant discharged under such circumstances is incapable of employment in the absence of medical evidence that he is no longer suffering from the psychiatric disorder. (A.B. 191,103; A-750-1773)"
Tuesday, April 3, 2012
NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS
The DOL has many citations to their position regarding health issues and voluntary separation:
"Physical inability to continue former work does not constitute good cause for voluntarily leaving employment when claimant fails to exercise the right, provided under the union agreement. of demanding work not detrimental to her health, being performed by others with less seniority. (A.B. 33,924-52; A-750-1172)
Claimant, whose health was adversely affected by her work but who refused transfers to locations which would overcome the objections and at similar work, was held to have voluntarily quit without good cause. (A.B. 11,524; A-750-636)
Failure to substantiate claimed adverse effect of working conditions on health resulted in finding that good cause for voluntary leaving did not exist. Medical certificate, because obtained after interview at Insurance Section, had little weight. (A.B. 6143-41; A-750-279; similarly, A.B. 12,910-46)
Doctor's certificate that claimant "feels that riding in trains and subways causes frequent colds ... avoidance of commutation advisable" at the most shows agreement by the doctor that claimant might feel better if commuting to the employer's new place of business were not required but is insufficient proof that claimant was compelled to leave the job for health reasons. (A.B. 39,825- 53; A-750-1233)
Failure to apply for a "trip-off" by a seaman who left his employment at the end of the voyage because of illness, held to constitute a voluntary leaving without good cause. (A.B. 21,112- 49; A-750-933; similarly, A.B. 27,947-51)
A seaman who did not request a "trip-off" upon leaving his employment because of illness, left with good cause when his vessel was operating on trips from two to seven months duration and by registering for new work after becoming well, he had prospects of obtaining a job within a month. (A.B. 26,205-51; A-750-1029)
Lack of heat for a short time prior to the heating season, which allegedly caused a cold which lasted one or two days, is not good cause for voluntary leaving of employment since to be detrimental to health a causative condition must be a continuing condition. (A.B. 18,923-49; A-750-878)
Discharge for failure to report for work on a date set by her employer, based on a single examination by its doctor, is a loss of employment under non-disqualifying conditions if the claimant's own physician has determined, based on a continuing course of treatment, that she was unable to work at that time. (A.B. 401,183; A-750-2033)
(a) Claimant was discharged when he notified his employer of his admittance to a hospital for drug rehabilitation sometime after being admitted. Claimant's absenteeism is not excused because it was caused by his admittance to a drug abuse rehabilitation program inasmuch as his drug abuse problem was a foreseeable result of his use of an illegal substance.
(b) After reemployment, it was not good cause for claimant to voluntarily leave his job in order to avoid the location near the work site where alleged drugs were available for purchase. (A.B. 409,188; A-750-2058)"
"Physical inability to continue former work does not constitute good cause for voluntarily leaving employment when claimant fails to exercise the right, provided under the union agreement. of demanding work not detrimental to her health, being performed by others with less seniority. (A.B. 33,924-52; A-750-1172)
Claimant, whose health was adversely affected by her work but who refused transfers to locations which would overcome the objections and at similar work, was held to have voluntarily quit without good cause. (A.B. 11,524; A-750-636)
Failure to substantiate claimed adverse effect of working conditions on health resulted in finding that good cause for voluntary leaving did not exist. Medical certificate, because obtained after interview at Insurance Section, had little weight. (A.B. 6143-41; A-750-279; similarly, A.B. 12,910-46)
Doctor's certificate that claimant "feels that riding in trains and subways causes frequent colds ... avoidance of commutation advisable" at the most shows agreement by the doctor that claimant might feel better if commuting to the employer's new place of business were not required but is insufficient proof that claimant was compelled to leave the job for health reasons. (A.B. 39,825- 53; A-750-1233)
Failure to apply for a "trip-off" by a seaman who left his employment at the end of the voyage because of illness, held to constitute a voluntary leaving without good cause. (A.B. 21,112- 49; A-750-933; similarly, A.B. 27,947-51)
A seaman who did not request a "trip-off" upon leaving his employment because of illness, left with good cause when his vessel was operating on trips from two to seven months duration and by registering for new work after becoming well, he had prospects of obtaining a job within a month. (A.B. 26,205-51; A-750-1029)
Lack of heat for a short time prior to the heating season, which allegedly caused a cold which lasted one or two days, is not good cause for voluntary leaving of employment since to be detrimental to health a causative condition must be a continuing condition. (A.B. 18,923-49; A-750-878)
Discharge for failure to report for work on a date set by her employer, based on a single examination by its doctor, is a loss of employment under non-disqualifying conditions if the claimant's own physician has determined, based on a continuing course of treatment, that she was unable to work at that time. (A.B. 401,183; A-750-2033)
(a) Claimant was discharged when he notified his employer of his admittance to a hospital for drug rehabilitation sometime after being admitted. Claimant's absenteeism is not excused because it was caused by his admittance to a drug abuse rehabilitation program inasmuch as his drug abuse problem was a foreseeable result of his use of an illegal substance.
(b) After reemployment, it was not good cause for claimant to voluntarily leave his job in order to avoid the location near the work site where alleged drugs were available for purchase. (A.B. 409,188; A-750-2058)"
Monday, April 2, 2012
NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS
Certainly, in terms of voluntary separation and disability, working conditions which adversely affected health constituted good cause for voluntary leaving of employment. Here is an early Appeal Board case on the issue:
"A-750-298
Index 1655-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
APRIL 8, 1942
INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING
Health, affected by working conditions
Appeal Board Case Number 6275-41
VOLUNTARY LEAVING- WORKING CONDITIONS ADVERSELY AFFECTING HEALTH
(SECTION 506.2 OF LABOR LAW)
Working conditions which adversely affected health constituted good cause for voluntary leaving of employment.
Referee's Decision: Initial determination disqualifying claimant for voluntary leaving employment without good cause is sustained. (9/4/41)
Appealed By: Claimant.
Findings of Fact: Claimant was employed as a secretary and stenographer, receiving $22.00 per week. Because of the large amount of work handled by claimant, the employer provided her with three other girls to assist her in the performance of her duties. These girls were inexperienced and accordingly claimant was required to carry the major burden of the work and compelled to work overtime. On or about August 1, 1941 a heated discussion ensued between claimant and the employer over the claimant's handling of a delinquent account. There was no question but that claimant handled the matter in accordance with the usual rules prevailing in the office. Because of her highly nervous condition, claimant in the heat of the argument resigned her position.
Appeal Board Opinion: The local office does not question claimant's availability for employment. Concededly she is willing to work under conditions that commonly prevail in the labor market. We believe that under the circumstances of this case, claimant had good cause in the interest of her health and well-being for voluntarily leaving her employment.
Decision: Claimant left her employment with good cause. Initial determination of local office is overruled. Decision of referee is reversed. (1/26/42)"
"A-750-298
Index 1655-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
APRIL 8, 1942
INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING
Health, affected by working conditions
Appeal Board Case Number 6275-41
VOLUNTARY LEAVING- WORKING CONDITIONS ADVERSELY AFFECTING HEALTH
(SECTION 506.2 OF LABOR LAW)
Working conditions which adversely affected health constituted good cause for voluntary leaving of employment.
Referee's Decision: Initial determination disqualifying claimant for voluntary leaving employment without good cause is sustained. (9/4/41)
Appealed By: Claimant.
Findings of Fact: Claimant was employed as a secretary and stenographer, receiving $22.00 per week. Because of the large amount of work handled by claimant, the employer provided her with three other girls to assist her in the performance of her duties. These girls were inexperienced and accordingly claimant was required to carry the major burden of the work and compelled to work overtime. On or about August 1, 1941 a heated discussion ensued between claimant and the employer over the claimant's handling of a delinquent account. There was no question but that claimant handled the matter in accordance with the usual rules prevailing in the office. Because of her highly nervous condition, claimant in the heat of the argument resigned her position.
Appeal Board Opinion: The local office does not question claimant's availability for employment. Concededly she is willing to work under conditions that commonly prevail in the labor market. We believe that under the circumstances of this case, claimant had good cause in the interest of her health and well-being for voluntarily leaving her employment.
Decision: Claimant left her employment with good cause. Initial determination of local office is overruled. Decision of referee is reversed. (1/26/42)"
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