Voluntary Quit VQ 235
Health and Safety Considerations
This section discusses separations caused by the claimant's health or physical condition; whether the leaving was necessary; and the claimant's fear of real or foreseeable injury. For discussion of the claimant's duty to request or accept a leave of absence, rather than leave work, see Section VQ 285. For a discussion regarding those who suffer from an irresistible compulsion to use or consume intoxicants, see Section VQ 270.
Title 22, Section 1256-15(b), provides:
A claimant leaves work with good cause if a reasonable person genuinely desirous of remaining employed would have left work due to an undue risk of injury or illness caused by health reasons, physical impairment, impairment of hearing, speech, or vision, pregnancy, or unsanitary conditions, temperature, or ventilation problems, adverse weather or climate conditions, or other working conditions, . . .
But Title 22 cautions in the same subsection:
. . . and the claimant has taken reasonable steps under the circumstances to preserve the employment relationship such as seeking sick leave where health factors are involved, or other leave, if available, or a transfer to other available work the claimant can perform.
Where the work is detrimental to the claimant's health AND the claimant is genuinely desirous of preserving the employment relationship, the claimant reasonably should give the employer the opportunity to remedy the situation. Thus, where a claimant quits because of an alleged health problem BUT fails to notify the employer of his problem although he had an opportunity to do so, the quit generally will be without good cause.
Where the claimant had worked in the past with a chronic illness but suddenly decided to quit because of the illness, good cause would depend upon (1) whether the illness had suddenly become critical or acute, or (2) whether the work or the conditions of work had changed, thereby aggravating the illness. If neither situation occurred, the quit would generally be without good cause.
- Quit Not on Advice of Physician
The fact alone that the claimant was concerned about a health or physical condition will not necessarily afford good cause for quitting employment. It must be established that continued employment under such circumstances would have been detrimental to the individual's health OR that the claimant has a reasonable basis for so believing. The facts establishing this will normally include a statement from the claimant's physician since, in most cases, self-diagnosis is not sufficient to establish that a claimant was compelled to quit.
However, situations do arise where the claimant quits work because of health problems BUT the claimant has not received medical advice to leave work. The fact alone that there was no medical recommendation that the claimant leave work will not support a finding that the quit was without good cause. If the fact of the claimant's illness is clearly established AND the claimant's subsequent actions establish that his or her physical condition was a compelling reason for termination, then the quit is with good cause.
In the absence of evidence that the claimant was advised to quit by a doctor, such factors as age, height, weight, experience in the work, physical condition and prior illness or injuries should be considered in relation to duties of the job. If consideration of all factors reasonably establishes that the claimant quit because of impaired health, good cause will not be negated by failure to seek advice from a physician.
In P-B-276, the claimant left his employment as second cook aboard a ship because he had contracted a severe cold and had "pleurisy pains." Although he had advised the ship's purser of his condition, no medical treatment had been furnished. When the ship docked, there was no improvement in the claimant's condition and he advised the purser he was leaving. The claimant subsequently purchased certain medicines and returned to his home, where he was confined to bed for six days before recovering sufficiently to contact his union hiring hall for work. The claimant testified that he did not seek medical attention for his illness because, "I knew what was the matter with me. It had happened to me before at one time." The Board held:
It is clear that the claimant was sick and the employer does not contend otherwise. In addition he had attempted to obtain medicine for the relief of his condition while aboard the vessel but without success. While the claimant's failure to seek the care of a physician may have been a lack of good judgment on his part, his subsequent actions are sufficient to establish that his physical condition was a compelling reason for his termination. In addition the nature of his ailment and his testimony in this connection explain his failure to do so.
In this case, the fact of claimant's illness was established by his reporting his illness to the purser. His subsequent actions of staying in bed for six days while he doctored himself established the compelling necessity for his termination.
An opposite conclusion was reached in P-B-117; the claimant resigned his employment in Southern California and relocated in Oregon because he believed that smog conditions in the Los Angeles area would, over a period of time, pose a health hazard to himself and his family. Although the claimant said he and his family had experienced occasional eye and respiratory irritation, none of them had been treated, nor advised by a physician to leave the area. The Board held his leaving to be without good cause stating:
The facts clearly show the claimant did not move his family from Southern California on the advice of a physician but rather on the basis of the individual research he had done and the impressions he had received from the various news media. Consequently, there is no evidence of an immediate compelling medical reason for the move . . . . In the absence of medical evidence that there was an immediate compelling necessity for moving himself or any members of his family, we hold that the claimant has not acted as a reasonable person sincerely desirous of retaining employment . . .
In situations where a doctor's certification is considered necessary in order to determine good cause, it should be kept in mind that the Department may not require the claimant or physician to disclose the particular medical condition. In Cathy Gunn v. CUIAB a 1979 appellate court case, the claimant refused to provide information regarding her apparent pregnancy, but was willing to provide information regarding her ability to work.
The court held that since she provided a statement from her physician to the effect that she was ". . . in good health and may work . . .," the Department should accept the certification as prima facie proof of her ability to work. (Although this case dealt with the claimant's ability to work, the same rationale would apply in determining good cause for a voluntary quit.)
- Preservation of Employment
Title 22, Section 1256-3(c) provides:
Prior to leaving work, the claimant has a duty to attempt to preserve the employment relationship. Failure to do so negates what would otherwise constitute good cause. This duty may be satisfied by reasonable steps, including, but not limited to, any of the following:
- Seeking an adjustment of the problem by allowing the employer an opportunity to remedy the situation if the employer can reasonably do so.
- Seeking a leave of absence or transfer to other employment with the same employer if likely to remedy the problem and if the claimant knew or should have known that a leave or transfer probably would have been granted if one had been requested.
- Taking steps within his or her own control . . .
In P-B-287, the claimant worked for the employer as a telephone operator. She left work on July 2 due to nervousness. She saw her doctor on July 6 and he certified her as disabled through September. The company physician examined the claimant on July 10 and agreed that "she may benefit by two weeks' disability." The claimant was placed on company sick leave at full salary to a maximum of 13 weeks, and a maximum nine weeks at half-pay as conditions warranted. The claimant's own doctor recommended on July 30, "I advise that the above patient cease entirely the type of work that she has had as it has resulted in a severe nervous condition." The claimant did not submit the statement to the employer. She was paid full salary from July 3 to August 6 when she resigned stating, "I was worrying about when I was going to go back" and the presence of "outside problems which did not help too much." In its decision denying benefits, the Board stated:
Although the claimant's physician advised her to cease entirely the type of work she was doing, she did not inform the employer of this advice nor did she make any attempt to secure other employment with the employer . . . . Considering the claimant's lack of experience other than as a telephone operator, it would appear that any work which she might be able to obtain from her employer would have been as suitable as any which she might obtain with any new employer. From a consideration of all the facts, we conclude that the mere thought of returning to work for this employer at some future date was not sufficiently detrimental to the claimant's health to constitute good cause for severing her employment with the employer.
By failing to inform the employer of the physician’s advice or attempting to secure other employment with the employer, the claimant negated good cause for quitting.
If other work is available which is within the claimant's qualifications and physical limitations, the claimant would be expected to request a transfer unless he or she obviously would not have been qualified for the work. In some instances a claimant will be unable to continue with the duties of his or her regular job but will be able to do lighter work. In such cases, the quit will be without good cause if the claimant fails to request transfer to the light work.
Another method of preserving the employment relationship where health factors are involved is a leave of absence from work (with or without pay). If a claimant is aware of his employer's leave policy but fails to request a leave of absence, a quit will be without good cause UNLESS the leave of absence would not solve the problem. A leave will not solve a claimant's problem when:
The nature of the claimant's illness or injury is such that he no longer will be able to do any work for that employer;
The work was only temporary and would have ended before the claimant's probable recovery;
The maximum leave permissible under the employer's policy is less than the expected duration of the claimant's illness or incapacity;
The "leave" would not give the claimant any assurance of probable return to work at the end of his illness.
If the claimant is not aware of the employer's leave policy, it becomes the employer's responsibility to offer a leave when apprised of the claimant's health problem. However, if the claimant has had prior leaves for any reason, he or she cannot plead that he or she was not aware of the employer's leave policy.
- Seeking an adjustment of the problem by allowing the employer an opportunity to remedy the situation if the employer can reasonably do so.
- Condition Present at Time of Hire
Title 22, Section 1256-15(b), provides:
. . . . [A] claimant who fraudulently fails to disclose or materially misrepresents his or her health or physical condition at the time of hire negates what would otherwise be good cause for that claimant to leave work due to the health or physical condition if the employer could have lawfully refused to hire the claimant had the condition been disclosed.
In P-B-78, the claimant had a history of back problems requiring medical attention. He had been fitted for a brace and given vocational rehabilitation training as a consequence of the severe back pains. At the time he applied for work with the employer as a boxboy, he specifically denied having any physical handicaps or back and foot problems on the application for work, because he knew he probably would not be hired if he revealed the problems. After hire, he was given a week's training and had no physical problems; the packages and bags were dummy merchandise and "not very heavy." When he started the job, his back pain began to flare up and he was forced to quit. He told the employer he was quitting because he didn't like the job. The employer agreed that the claimant would not have been hired had they known of his back problems. In holding the claimant ineligible for benefits, the Board stated:
In our opinion, a prospective employee has a duty to make a full disclosure of any facts which may affect his ability to work. If he fails to do so, he is guilty of fraud and should not be permitted to benefit from his wrongful act. The claimant's failure to disclose his back condition to the employer was a fraud at the inception of the employment contact and it permeates the entire transaction . . . the claimant's fraud negated what would otherwise be considered good cause for leaving his work . . . .
- Undue Risk of Illness or Injury
The degree of risk which may be encountered in the workplace ranges from a "mere concern with one's safety" to "a substantial and immediate threat of serious illness or injury."
- Mere Concern is Not Sufficient
Title 22, Section 1256-15(d), takes into consideration the situation of a claimant merely concerned with his or her safety:
. . . . Mere concern with one's health or safety is not sufficient to justify good cause for leaving work. The work must cause an undue risk of injury or illness to the claimant. A claimant who leaves work due to fear of becoming ill or being injured has good cause if the claimant has a reasonable basis to believe that there is an undue risk of injury or illness . . . . Minor chronic health conditions that are not aggravated or significantly affected by the work do not justify leaving the work.
In P-B-117, (previously cited) the claimant quit his job in Southern California after reading books on the hazards and effects of smog. He had no medical advice to leave. He was concerned that over a period of time there would be a health hazard. The Board held:
There is no evidence of an immediate compelling medical reason for the move . . . . The claimant rejected the alternative of moving to a smog-free coastal area in Southern California which might have served as an interim remedy until other employment could be obtained. His rejection is based upon his own opinion that the carbon monoxide content and concentration on Southern California freeways presented a hazard to his health. We reject this contention . . . .
A mere concern, founded only on the principle that something might happen in the future, does not constitute reasonable basis for quitting a job. In the absence of a demonstrable risk or a reasonable, foreseeable, and substantial probability, the claimant's fear must be considered to be unfounded.
In Rabago v. CUIAB, a 1978 appellate court case, an opposite conclusion was reached because documentation verified the claimant's health concerns were valid. Mr. Rabago was employed by Prestolite Battery for two years. After quitting, he filed a claim for benefits in which he stated, "The lead was making it a hazard to my health." The employer periodically tested workers for excessive lead content in their blood, and there was no evidence that the claimant had failed any of the tests. A year into his employment, he was referred to the company doctor for symptoms including stomach pains and nervousness, nausea, dizziness, headaches, and loss of appetite. The claimant testified that the company doctor stated he wouldn't verify the claimant's physical problems were caused by lead poisoning, "but since I was working there, that was a possibility." Several months prior to his quit, the claimant was examined for "gastro-intestinal" symptoms but there was no evidence as to what conclusion the doctor reached. In its decision reversing the Superior Court findings, the Fifth Appellate Court stated:
Appellant argues that the trial court erred in refusing to consider a decision of the state Occupational Safety and Health Appeals Board (OSHA) concerning health and safety hazards in Prestolite's plant. The decision was rendered some nine months subsequent to the administrative hearing but reflected conditions which existed in the plant during appellant's employment.
The OSHA decision . . . contains detailed evidential material, including tests conducted for lead contamination and instances of violations of health and safety standards due to the presence of lead in Prestolite's plant. The decision is reliable evidence of the existence of instances of lead contamination with the plant during the period of appellant's employment which posed a threat to employees' health during that period and serves to substantiate the reasonableness of appellant's fear that he was being poisoned by lead.
The court also found that "the skimpy record in this case is wholly inadequate to support a conclusion" that either requesting a leave of absence, or filing a grievance was an appropriate or feasible alternative.
- Inherent in Some Occupations
Claimants in some occupations, such as firefighters, safety employees, or miners, face an unusually high risk of injury. Those in other occupations, such as the medical sciences, face a risk of contracting certain occupational diseases. A person entering one of these occupations assumes only the ordinary risks of the occupation.
Title 22, Section 1256-15(b) provides:
A high risk of illness or injury is ordinary and inherent in the nature of the work for some occupations . . . . A worker in such occupation accepts these inherent high risks. However, if working conditions violate the law or are so intolerable as to adversely affect the health of the employees, and the employer is aware of and does not correct the conditions, good cause for leaving work exists.
An example of an ordinary risk that is inherent in an occupation is the firefighter who is required to enter a burning structure. However, if the fire department refused to provide the firefighter with protective clothing and equipment, the "ordinary risk" of entering that burning structure would then become an "undue risk of injury or illness."
Moore v. CUIAB/Bechtel Power Corp. is a 1985 appellate court case. The decision involved a discharge which could also have been decided as a constructive voluntary quit. The claimants were electricians who accepted union referrals to work at a nuclear generating plant. If they had not accepted the referrals, their names would not have come up for dispatch for another six to twelve weeks. Both signed the referral card from the union which stated: "I understand that I may be required to work in a radiation area at the Plant." Both men had previously worked at the plant and were familiar with the nature of the work, the various levels of radioactivity, and the risk of harm involved. They had received training to prepare them for radiation assignments. Neither wanted to work in radioactive areas, but accepted the employment in hope of avoiding assignment to the radioactive areas. They were concerned not only about exposure to radioactivity and contamination, but also had substantial doubts about the safety and reliability of the radiation monitoring system in use at the plant. They had been alerted to alleged safety violations and improper safety procedures from the media and co-workers.
The first three weeks both men worked outside radiation exposure areas. On August 20, Moore was assigned to "red waste," a radiation area. Moore knew that a fellow electrician, assigned to the same area, had been told that he had suffered no radiation contamination; later, the company records and computer printout were found to be inaccurate and the fellow employee was found to have been exposed to a substantial amount of radiation over the previous year. Moore told his supervisor of his fears. During the course of a meeting with the superintendent, the building and trades representative, and the foreman, Moore was terminated for refusal to enter the work area. A comparable situation existed for another electrician for the same reason. Both men offered to do any assignment other than "red waste."
The two claimants contended that they had a good faith, reasonable fear for their safety, and although they conceded that their refusals of the assignments may have been sufficient basis for the discharges, they contended that their health concerns established good cause for failure to comply with the employer's requirements. The appellate court agreed, stating:
. . . . [E]ach presented uncontroverted evidence demonstrating his good faith, subjective belief there was a substantial health risk in working within the assigned radiation areas . . . . Each refusal was the result of substantial concern regarding the safety and reliability of the employer's radiation monitoring system . . . . Each testified to the occurrence of a personal experience immediately before refusing to work in the radiation areas which created a reasonable doubt as to the reliability of the radiation monitoring system . . . . The employer's prior record supports the reasonableness of their apprehension and does not inspire confidence in its safety control . . . . The foregoing gives rise to a reasonable, good faith and honest apprehension of harm to one's health and safety within the San Onofre work environment.
Within potentially hazardous work environments, a worker has the right to independently evaluate the safety of that environment . . . . There is no evidence either party would not have performed his assigned tasks had the employer's prior record shown a safeguard system characterized by radiation monitor reliability and only a few instances of radiation overexposure and contamination . . . .
The court also found that the signed employment referral only states an acceptance of a work assignment within radiation areas. Knowledge that one may be required to work in a radiation area does not constitute an acceptance to work in an unsafe and hazardous work environment.
- Intolerable Working Conditions
In McCrocklin v. Calif. Dept. of Employment a 1984 appellate court case, the claimant, an engineering manual writer, worked in a room containing numerous partially-enclosed cubicles. His cubicle measured five by six feet, with plywood walls and a glass top. The area was a security area because of the confidentiality of the work and was enclosed and unventilated. Of the nine people in his area, three smoked pipes, cigarettes, or cigars. Additionally, the noise caused by the laughter and talk of his fellow employees bothered the claimant. He attempted to ventilate his area by means of two fans, which "put him in the cross fire of a hurricane," and had complained to management about the work environment. Management promised to install floor-to-ceiling partitions, an air circulation system, and doors on the cubicles, but did nothing to accomplish the requested changes. The claimant asked permission to do his manual writing at home, but his request was denied. Although the claimant is not allergic to smoke, he found it offensive and unpleasant; one of his fellow employees smoked a brand which made the claimant's eyes water and caused his throat to be raw. In its decision, the Court stated:
At the hearing . . . McCrocklin failed to present anything other than hearsay newspaper articles on the subject of smoking. The articles stressed the deleterious effect of cigarette smoke on nonsmokers, and referred to the Surgeon General's Report. While no competent medical evidence was introduced to support a finding that secondhand smoke constituted a health hazard to McCrocklin, the articles nevertheless provided a basis for his reasonable belief that smoke was a health hazard.
Nonsmokers who must work with smokers should not construe our holding as an invitation to quit their jobs in anticipation that they will automatically receive unemployment benefits. The unrefuted particular facts in this case reflect that McCrocklin's fears were reasonable because of the following: (1) He was working in an enclosed, poorly-ventilated room; (2) Several of his coworkers in his area smoked; (3) The tobacco smoke could not be excluded from his cubicle; (4) He had a good-faith belief that the smoke had a carcinogenic effect on his health; and (5) Breathing smoke from certain brands of cigarettes made his eyes water and his throat raw.
In holding the claimant entitled to unemployment benefits, the court stated that working in an enclosed, unventilated smoke filled room was not an occupational hazard commonly associated with the writing of engineering manuals.
- Immediate Threat of Illness or Injury
Title 22, Section 1256-15(b) states in part:
. . . . [I]f an individual believes based on reasonable grounds that a substantial and immediate threat of serious injury or illness exists due to a working condition, the individual has good cause to refuse to work and if necessary under the particular circumstances leave the premises or work without using any existing grievance procedure prior to leaving, since immediate protective action is necessary. "Serious injury or illness" means a risk of an injury or illness of sufficient gravity to require immediate emergency medical treatment and pose a danger of probable loss or substantial impairment of a member of the body, or any degree of permanent disability or death.
In (1980), the U.S. Supreme Court considered the case of two men, both maintenance employees, who protested their separation from the appellant employer under the provisions of the Occupational Safety and Health Act (OSHA) of 1970. That Act prohibits an employer from discharging or discriminating against any employee who refuses to perform his work because of a reasonable apprehension of death or serious injury, coupled with a reasonable belief that no other alternative is available.
The Whirlpool plant produced household appliances. Overhead conveyors transported component parts throughout the plant. To protect the employees from objects that occasionally fell from the conveyors, the employer installed iron frames with an attached horizontal wire-mesh guard screen approximately 20 feet above the plant floor.
Maintenance employees spent several hours each week removing objects from the screen that would otherwise have fallen to the floor, replacing paper spread on the screens to catch grease dripping from the conveyors, and performing occasional maintenance work on the conveyors themselves. To perform these duties, maintenance employees were required to stand on the iron frames holding the mesh, and occasionally to stand on the mesh itself. Several employees had fallen through the old screen either partially or completely, although no deaths had resulted. When the unsafe conditions were brought to the company's attention, the employer began installing heavier wire in the screen and counseled the employees to stand on the angle-iron frames only. In 1974, a maintenance employee fell to his death through the guard screen in an area where the newer, stronger mesh had not yet been installed. The employer forbade the employees to stand on either the screens or the irons, and supplied power-raised mobile platforms to lift the employees, and hooks to retrieve fallen material. The two employees in this case had expressed their concern about the safety of the screen with several levels of management, and finally, with an official at the regional OSHA office. The next day, upon reporting to work, the two men were assigned to work on a section of old screen. Their foreman, after walking on some of the angle-iron frames, directed the two men to perform their usual maintenance duties. Claiming that the screen was unsafe, they refused to carry out the orders. The foreman sent them to the personnel office where they were ordered to punch out. The two men subsequently received written reprimands. A month later, the Secretary of Labor filed suit alleging that the employer's actions were in violation of the Occupational Safety and Health Act of 1970.
In discussing the application of the Act to the employees, the Supreme Court stated:
The Act itself creates an express mechanism for protecting workers from employment conditions believed to pose an emergent threat of death or serious injury. [The steps to invoke OSHA are omitted.]
In the light of this detailed statutory scheme, the Secretary is obviously correct when he acknowledges in his regulation that, "as a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace.". . . . [T]he legislation obviously contemplates that the employer will normally respond by voluntarily and speedily eliminating the danger.
As this case illustrates, however, circumstances may sometimes exist in which the employee justifiably believes that the express statutory arrangement does not sufficiently protect him from death or serious injury. Such circumstances will probably not occur often, but such a situation may arise when (1) the employee is ordered by his employer to work under conditions that the employee reasonably believes pose an imminent risk of death or serious bodily injury, and (2) the employee has reason to believe there is not sufficient time or opportunity either to seek effective redress from his employer or to apprise OSHA of the danger.
Although this case dealt with a reprimand, rather than a separation, the same rationale would apply in determining good cause in cases where the individual has left employment as a result of an immediate threat of serious bodily injury. It should also be noted that in the Whirlpool case cited above, the employees did attempt to resolve their differences prior to refusing to perform the work, and did not refuse to perform the services until after there had been a death at the plant.
- Mere Concern is Not Sufficient