Senate Bill No. 4
(By Senator Wooton)
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[Introduced January 11, 1995; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact section three, article six, chapter
twenty-one-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to authorizing the
payment of unemployment compensation benefits to employees
who are terminated from their employment due to medical-
related problems prior to being employed for at least thirty
days.
Be it enacted by the Legislature of West Virginia:
That section three, article six, chapter twenty-one-a of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 6. EMPLOYEE ELIGIBILITY; BENEFITS.
§21A-6-3. Disqualification for benefits.
Upon the determination of the facts by the commissioner, an
individual shall be disqualified for benefits:
(1) For the week in which he left his most recent work
voluntarily without good cause involving fault on the part of the
employer and until the individual returns to covered employment
and has been employed in covered employment at least thirty
working days: Provided, That no employee who has worked less
than thirty days of covered employment may be denied benefits who
is forced to resign or is terminated from his or her covered
employment as the result of the inability to perform work-related
duties due to a physical disease, illness or injury that
necessitates medical care.
For the purpose of this subdivision (1), an individual shall
not be deemed to have left his most recent work voluntarily
without good cause involving fault on the part of the employer,
if such individual leaves his most recent work with an employer
and if he in fact, within a fourteen-day calendar period, does
return to employment with the last preceding employer with whom
he was previously employed within the past year prior to his
return to work day, and which last preceding employer, after
having previously employed such individual for thirty working days or more, laid off such individual because of lack of work,
which layoff occasioned the payment of benefits under this
chapter or could have occasioned the payment of benefits under
this chapter had such individual applied for such benefits. It
is the intent of this paragraph to cause no disqualification for
benefits for such an individual who complies with the foregoing
set of requirements and conditions. Further, for the purpose of
this subdivision, an individual shall not be deemed to have left
his most recent work voluntarily without good cause involving
fault on the part of the employer, if such individual was
compelled to leave his work for his own health-related reasons
and presents certification from a licensed physician that his
work aggravated, worsened, or will worsen the individual's health
problem.
(2) For the week in which he was discharged from his most
recent work for misconduct and the six weeks immediately
following such week; or for the week in which he was discharged
from his last thirty-day employing unit for misconduct and the
six weeks immediately following such week. Such disqualification
shall carry a reduction in the maximum benefit amount equal to
six times the individual's weekly benefit. However, if the claimant returns to work in covered employment for thirty days
during his benefit year, whether or not such days are
consecutive, the maximum benefit amount shall be increased by the
amount of the decrease imposed under the disqualification; except
that:
If he were discharged from his most recent work for one of
the following reasons, or if he were discharged from his last
thirty days employing unit for one of the following reasons:
Misconduct consisting of willful destruction of his employer's
property; assault upon the person of his employer or any employee
of his employer; if such assault is committed at such
individual's place of employment or in the course of employment;
reporting to work in an intoxicated condition, or being
intoxicated while at work; reporting to work under the influence
of any controlled substance, or being under the influence of any
controlled substance while at work; arson, theft, larceny, fraud
or embezzlement in connection with his work; or any other gross
misconduct; he shall be and remain disqualified for benefits
until he has thereafter worked for at least thirty days in
covered employment: Provided, That for the purpose of this
subdivision the words "any other gross misconduct" shall include, but not be limited to, any act or acts of misconduct where the
individual has received prior written warning that termination of
employment may result from such act or acts.
(3) For the week in which he failed without good cause to
apply for available, suitable work, accept suitable work when
offered, or return to his customary self-employment when directed
to do so by the commissioner, and for the four weeks which
immediately follow for such additional period as any offer of
suitable work shall continue open for his acceptance. Such
disqualification shall carry a reduction in the maximum benefit
amount equal to four times the individual's weekly benefit
amount.
(4) For a week in which his total or partial unemployment is
due to a stoppage of work which exists because of a labor dispute
at the factory, establishment or other premises at which he was
last employed, unless the commissioner is satisfied that he: (a)
Was not participating, financing, or directly interested in such
dispute; and (b) did not belong to a grade or class of workers
who were participating, financing or directly interested in the
labor dispute which resulted in the stoppage of work. No
disqualification under this subdivision shall be imposed if the employees are required to accept wages, hours or conditions of
employment substantially less favorable than those prevailing for
similar work in the locality, or if employees are denied the
right of collective bargaining under generally prevailing
conditions, or if an employer shuts down his plant or operation
or dismisses his employees in order to force wage reduction,
changes in hours or working conditions.
For the purpose of this subdivision, if any stoppage of work
continues longer than four weeks after the termination of the
labor dispute which caused stoppage of work, there shall be a
rebuttable presumption that part of the stoppage of work which
exists after said period of four weeks after the termination of
said labor dispute did not exist because of said labor dispute;
and in such event the burden shall be upon the employer or other
interested party to show otherwise.
(5) For a week with respect to which he is receiving or has
received:
(a) Wages in lieu of notice;
(b) Compensation for temporary total disability under the
workers' compensation law of any state or under a similar law of
the United States; or
(c) Unemployment compensation benefits under the laws of the
United States or any other state.
(6) For the week in which an individual has voluntarily quit
employment to marry or to perform any marital, parental or family
duty, or to attend to his or her personal business or affairs and
until the individual returns to covered employment and has been
employed in covered employment at least thirty working days.
(7) Benefits shall not be paid to any individual on the
basis of any services, substantially all of which consist of
participating in sports or athletic events or training or
preparing to so participate, for any week which commences during
the period between two successive sport seasons (or similar
periods) if such individual performed such services in the first
of such seasons (or similar periods) and there is a reasonable
assurance that such individual will perform such services in the
later of such seasons (or similar periods).
(8) (a) Benefits shall not be paid on the basis of services
performed by an alien unless such alien is an individual who was
lawfully admitted for permanent residence at the time such
services were performed, was lawfully present for purposes of
performing such services, or was permanently residing in the United States under color of law at the time such services were
performed (including an alien who is lawfully present in the
United States as a result of the application of the provisions of
section 203(a)(7) or section 212(d)(5) of the Immigration and
Nationality Act): Provided, That any modifications to the
provisions of section 3304(a)(14) of the Federal Unemployment Tax
Act as provided by Public Law 94-566 which specify other
conditions or other effective date than stated herein for the
denial of benefits based on services performed by aliens and
which modifications are required to be implemented under state
law as a condition for full tax credit against the tax imposed by
the Federal Unemployment Tax Act shall be deemed applicable under
the provisions of this section;
(b) Any data or information required of individuals applying
for benefits to determine whether benefits are not payable to
them because of their alien status shall be uniformly required
from all applicants for benefits;
(c) In the case of an individual whose application for
benefits would otherwise be approved, no determination that
benefits to such individual are not payable because of his alien
status shall be made except upon a preponderance of the evidence.
(9) For each week in which an individual is unemployed
because, having voluntarily left employment to attend a school,
college, university or other educational institution, he is
attending such school, college, university or other educational
institution, or is awaiting entrance thereto or is awaiting the
starting of a new term or session thereof, and until the
individual returns to covered employment.
(10) For each week in which he is unemployed because of his
request, or that of his duly authorized agent, for a vacation
period at a specified time that would leave the employer no other
alternative but to suspend operations.
(11) For each week with respect to which he is receiving or
has received benefits under Title II of the Social Security Act
or similar payments under any act of Congress and/or remuneration
in the form of an annuity, pension or other retirement pay from
a base period and/or chargeable employer or from any trust or
fund contributed to by a base period and/or chargeable employer,
the weekly benefit amount payable to such individual for such
week shall be reduced (but not below zero) by the prorated weekly
amount of said benefits, payments and/or remuneration: Provided,
That if such amount of benefits is not a multiple of one dollar, it shall be computed to the next lowest multiple of one dollar:
Provided, however, That there shall be no disqualification if in
the individual's base period there are no wages which were paid
by the base period and/or chargeable employer paying such
remuneration, or by a fund into which the employer has paid
during said base period. Claimant may be required to certify as
to whether or not he is receiving or has been receiving
remuneration in the form of an annuity, pension or other
retirement pay from a base period and/or chargeable employer or
from a trust fund contributed to by a base period and/or
chargeable employer.
(12) For each week in which and for fifty-two weeks
thereafter, beginning with the date of the decision, if the
commissioner finds such individual who within twenty-four
calendar months immediately preceding such decision, has made a
false statement or representation knowing it to be false or
knowingly fails to disclose a material fact, to obtain or
increase any benefit or payment under this article: Provided,
That disqualification under this subdivision shall not preclude
prosecution under section seven, article ten of this chapter.
NOTE: The purpose of this bill is to provide that employees
with less than thirty days service under covered employment do
not lose unemployment compensation benefits when they are forced
to resign or are terminated as the result of an inability to
perform job-related duties due to physical disease, illness or
injury that necessitates medical care.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.