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."