New Washington Unemployment Insurance Regulations Affecting Disabled Employees

by Michael Killeen
[Spring 2002]

Effective May 3, 2002, there are new Employment Security Department regulations governing when disabled employees are eligible for Unemployment Compensation ("UC") benefits. See WAC 192-150-060; 192-170-150; 192-180-012. Ostensibly, these regulations refine existing rules on "availability for work" and disqualifications for voluntary separation. However, they may make it more likely that employees will claim UC benefits following disability-related job separations or during disability-related medical leaves.

Good Cause Disqualification

The Employment Security Department's new section 192-150-060 clarifies existing law that an employee has good cause to leave if separation is for a disability-provided that employees exercise reasonable caution to preserve their employment before leaving. The new rule adds greater specificity to the reasonable precautions an employee must make, requiring an employee to:

• Notify Employer Of A Disability Before Leave: Employees leaving work because of a disability must notify the employer of the disability before leaving work or beginning a leave of absence.
• Support Work Restrictions With Statement By A Physician: Employees must support alleged restrictions on their ability to work with a statement by a physician.
• Request Reemployment: Employees on a leave of absence are still required to "promptly request reemployment from [their] employer when [they] are again able to return to work."

As under former law, an employee need not exercise these "reasonable precautions" if the efforts to preserve employment status would be futile.

Refusing Suitable Work

The most profound effect of the new regulations may be in determining whether disabled employees are "available for work." Generally, UC claimants are disqualified if they fail without good cause to apply for available suitable work, or to accept suitable work when offered.

New section WAC 192-170-050 creates a new code title "Availability for Work," and replaces WAC 192-16-021, discussing "suitable work factors." These revisions state that a claimant's disability, including disabilities related to pregnancy, may affect the determination of suitable work. This may make it easier for an employee on medical leave or with physical conditions to satisfy the "available for work" requirements, as follows:

• Less Than Full-Time Work May Be Suitable: In specified circumstances, the Department may determine that less than full-time work is suitable. This may make it easier for disabled employees with limitations on the number of hours of work to establish availability by increasing the universe of jobs for which they are available.
  
  
• Other Work Can Be Suitable Work: If employees cannot perform their former work, any other work they may be able to perform can constitute suitable work. This means employees who cannot perform their former job can still be found available for work, if they can perform other jobs in accord with their physical limitations.
  Also note that if the claimant's former employer chooses to offer alternative work, it must do so prior to separation or leave. A claimant does not have to request such an offer in order to be classified as "able to work" for purposes of UC benefits. However, an employee must affirmatively show good cause for rejecting such an offer.
  
  
• Physician Verification Required, But "Physician" Is Broadly Defined: The new regulations on suitable work require verification of any alleged disability from a physician. However, the regulation's definition of "physician" includes more than just medical doctors, and can include psychiatrists, chiropractors, and naturopaths. This may allow a broad range of employees with physical or mental conditions to take advantage of UC benefits, depending on what their "physician" will attest to.

Comment:

The Employment Security Department notes in its explanatory statement that "[n]othing in the proposed regulations changes existing law that a claimant must be available for work and meet specific job search requirements." Instead, the new regulations are meant to deal with "claimants who leave work because of illness or disability [but] do not apply for UI until they have recovered. If a claimant has complied with RCW 50.20.050 (and the proposed regulation), and is now available for work, s/he would be eligible for UI while seeking a new job in the event a separation has occurred."

However, employers may find that the new regulations make it easier for claimants with willing physicians to establish that they are available for work. Claimants that formerly could be disqualified because they could not perform any suitable work may now benefit from the relaxed rules on "suitable work." Employers should consult with employment counsel to review liabilities under the new regulations.

This Employment Law Advisory is a publication of the Employment Law Department of Davis Wright Tremaine LLP. Our purpose in publishing this Advisory is to inform our clients and friends of recent developments in employment law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations. Copyright © 2002, Davis Wright Tremaine LLP.

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