1. NAUIAP Summer Conference  Hartford, CT  June 21, 2016 Reba Blackwell  Chief of Appeal Tribunal  New Mexico Katrina Gulstad  Chief Unemployment Law Judge  Minnesota Sasha Mackin  Supervising Unemployment Law Judge  Minnesota I quit my job due to [medical reasons] – am I eligible for benefits? Voluntary quit analysis in the unemployment law context

2. Who you are Mock Hearing Minnesota analysis New Mexico analysis Challenges Questions What We’ll Cover Today

3. What state are you from? Does your state have an exception to ineligibility for quitting due to the applicant’s/claimant’s own illness/injury? Does your state have an exception to ineligibility for quitting to care for a family member’s illness/injury? Does your state require medical documentation of the illness/injury? Is the employer account charged if the applicant/claimant meets the quit medical exception? If you have a medical/quit case are you obligated under your state’s law to decide if the applicant/claimant is available/able to work? Who you are: 20 States answered survey questions

4. Who you are:

6. About five states require documentation from a medical professional. The rest will take competent reliable evidence (although best evidence may still be from a medical professional). Medical Documentation

7. The vast majority of states would refer the matter back to the agency to adjudicate on a lower level. Availability/ability to work?

8. Mock Hearing What issues are at play? What questions would you ask? What facts would you find?

9. 268.095 INELIGIBILITY BECAUSE OF QUIT OR DISCHARGE. §§ Subdivision 1. Quit. An applicant who quit employment is ineligible for all unemployment benefits according to subdivision 10 except when: (1)the applicant quit the employment because of a good reason caused by the employer: Subd. 3. Good reason caused by the employer defined. (a) A good reason caused by the employer for quitting is a reason: (1) that is directly related to the employment and for which the employer is responsible; (2) that is adverse to the worker; and (3) that would compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment. How would Minnesota decide this case?

10. An applicant who quit employment is ineligible for all unemployment benefits… except when: (7)the applicant quit the employment (i) because the applicant's serious illness or injury made it medically necessary that the applicant quit; or (ii) in order to provide necessary care because of the illness, injury, or disability of an immediate family member of the applicant. This exception only applies if the applicant informs the employer of the medical problem and requests accommodation and no reasonable accommodation is made available. Quit for serious illness/injury statute:

11. Subd. 15. Available for suitable employment defined. (a) "Available for suitable employment" means an applicant is ready, willing, and able to accept suitable employment. The attachment to the work force must be genuine. An applicant may restrict availability to suitable employment, but there must be no other restrictions, either self-imposed or created by circumstances, temporary or permanent, that prevent accepting suitable employment. Minnesota availability statute

12. New Mexico Statute 51-1-7(A)(1) An individual shall be disqualified for and shall not be eligible to receive benefits if it is determined by the division that the individual left employment voluntarily without good cause in connection with the employment. “Good cause is established when an individual faces compelling and necessitous circumstances of such magnitude that there is no alternative to leaving gainful employment.” Molenda v. Thomsen, 1989-NMSC-022, 108 N.M. 380, 381, 772 P.2d 1303, 1304. Claimants must make reasonable efforts to preserve employment. How would New Mexico decide this case?

13. A claimant who leaves her work solely because of pregnancy or medical complications resulting from pregnancy will be eligible for benefits when she is able to work and available for work. Reasons that are NOT considered good cause connected with the work ▫ Personal or Domestic reasons ▫ Leaving to care for sick relatives (NM does not currently recognize “quit to care” as good cause for voluntarily leaving) See, e.g., Begay v. N.M. Emp’t Sec. Dep’t, 100 N.M. 529, 531, 673 P.2d 509, 508 (1983) Pregnancy exception

14. Availability New Mexico Statute §51-1-5(A)(3): An unemployed individual shall be eligible to receive benefits with respect to any week only if he is able to work and is available for work and is actively seeking full-time, or part-time permanent employment of 20 hours per week or more. Able to work A claimant must be able to work. This requirement means the claimant must be physically and mentally capable of performing part time work of at least 20 hours per week. Although a claimant may not be able to work in the claimant’s former occupation, the claimant is considered able to work so long as the claimant is capable of performing services in some occupation for which there is a demand in the claimant’s job market. New Mexico Availability & Ability

15. Developing the record Probative value of medical evidence

16. Obtaining adequate evidence ▫ Is a medical professional present to testify? ▫ Is the claimant willing to share sensitive medical evidence? Is the employer? ▫ Is there any medical documentation in the record? ▫ Can the claimant afford to see a medical professional to obtain documentation? ▫ What is the quality of the medical documentation? ▫ Does the documentation show a nexus between the condition and the job? How necessary is the documentation? ▫ Is the claimant a credible historian for his or her own condition? Roadblocks to developing the record…

17. How do we resolve inconsistencies between ▫ Medical documents and the claimant’s testimony? ▫ Multiple medical documents? In the context of an ability/availability issue where the doctor’s note says “totally unable to work” but the claimant is working…  Is it true the claimant is totally unable to work? Is this medical opinion? What is the worth of the medical opinion? Can a claimant choose to reject medical advice? Is the doctor ever wrong?

18. Discussion items: Accommodation Responsibility Medically Necessary

19. If the claimant must do what she can to preserve her job, what are reasonable accommodations she should be asking for or accepting? Is an unpaid leave reasonable? What if the unpaid leave means the claimant cannot maintain health insurance? When is an unpaid leave not reasonable? Is any length of leave reasonable if it is medically necessary to quit because of the specific environment in which the claimant works? Reasonable Accommodations

20. Who has the duty to request or offer leaves of absence? The claimant? The employer? Does it matter if there is a separate legal obligation in other contexts for the employer to initiate the discussion about accommodation? (FMLA context, ADA context… etc.) The interactive process

21. How do you discern whether a medical condition is caused by the job or other factors? Does it matter? Subjective or objective standard? Can reasonable supervision/criticism cause a medical issue like an anxiety disorder? PTSD? Depression? When a medical illness or injury prevents is at play, is the separation voluntary? Is it a quit or discharge? When is it medically necessary to separate?

23. An NM│MN Production Thank you!