An employee [Claimant] failed to provide negative COVID-19 test results at the beginning of her work week as required and was advised that her failure to do so in the future could result in her termination. Claimant was subsequently terminated after she failed to provide a negative COVID test result when she returned to work after a brief absence.
Claimant applied for but was subsequently administratively disqualified from receiving unemployment insurance benefits because she lost her employment due to misconduct. An Administrative Law Judge sustained that administrative determination, which decision was affirmed by the Unemployment Insurance Appeal Board. This decision by the Board affirmed a second time after Claimant asked the Board reconsidered its earlier decision.
Claimant appealed but the Appellate Division affirmed the Board's determination noting that "It is well settled that failure to abide by a known policy of the employer can constitute disqualifying misconduct" for the purpose of determining eligibility for unemployment insurance benefits".
Noting that Claimant was aware that she had to provide proof of a negative COVID-19 test result at the beginning of her work week, and that Claimant had testified that she had been tested for COVID-19 and had submitted the results to the employer via email or text message.
Claimant's program director testified and agreed that:
1. Claimant always maintained that she had submitted the required test results;
2. Claimant's program director testified that most of those results were never received; and
3. It had been made clear to Claimant, first orally and eventually in a written warning, that she must provide the results upon the start of her work week or face discipline.
Ultimately Claimant admitted that she had "failed to get tested and provide the results" on the day she returned to work in October 2021.
The Appellate Division held that Claimant's admitted violation of the [employer's] policy in October 2021, and, when coupled with Claimant's history of prior warnings, constituted substantial evidence supporting the Board's determination that "[Claimant] wase was terminated for disqualifying misconduct" and thus was ineligible for unemployment insurance benefits.
Click HERE to access the Appellate Division decision posted on the Internet.