Suitable Work SW 235

Health or Physical Condition

This Section discusses refusals of work for reasons of health. It deals primarily with cases in which the claimant’s health or physical condition is the reason for refusing the referral or offer of work. For a discussion of cases in which the conditions of the job pose a risk of illness or injury, refer to SW 440.

It should be noted that any refusal of referral of work because of health reasons raises an availability issue which must be resolved.

A. General Health Conditions

A claimant’s reason for refusing work because of health reasons will usually fit into one of two categories; the claimant is unable to: perform the work or the claimant’s health would be adversely affected by the work.

• Unable to Perform the Work

If a claimant is physically unable to perform the work required, the work is not suitable and the claimant cannot be disqualified under Section 1257(b).

• Health Adversely Affected

If it is established that, although able to perform the work, the claimant’s health would be adversely affected by the prospective employment, the claimant has good cause for refusal.

For example, the claimant had a tumor in her leg which prevented her from standing continuously. As a result of this condition, she was forced to leave her last job as a shirt presser, which required long periods of continuous standing. The claimant provided a medical verification that she can stand for no longer than one hour without a 15 minute rest period. The claimant was given a referral to a job as salesclerk. She interviewed with the employer but was unable to accept the job because it required continuous standing for two hours at a time and the employer was unable to provide accommodation. In this case the claimant had good cause for the refusal.

However, the Board has consistently held that the claimant is obligated to investigate the conditions of work and make or attempt an adjustment if possible to accommodate his or her health condition.

If a simple adjustment, such as obtaining glasses, or using minor health aids, would allow the claimant to accept and perform the work, the claimant is obliged to attempt such reasonable action. Occasionally the expense of the medical aid or treatment may render such an action impractical, the point is, the claimant is obliged to make a reasonable effort to adjust the problem in order to accept suitable employment prior to refusal. (If the claimant will not accept the medical aid or treatment because of a genuine conscientious objection, he or she is not obligated to do so.)

In some cases, if the employer is aware of the claimant’s health problem, working conditions may be adjusted to some degree. This might be the case for the claimant unable to stand for long periods. Again, the key point is, the claimant should make a reasonable attempt to obtain the adjustment prior to refusal.

Medical Verification

In cases involving medical conditions which are not obvious to the layperson, a medical statement should be obtained when possible. Any such statement, which provides only a general description of the individual’s restriction, must be considered in relationship to the working conditions of the job refused. The weight or application of a physician’s statement must be considered with reference to:

• The recency of the medical examination.
• The degree to which the doctor’s statement is specific.
• Explicit medical instructions or advice to the claimant.

A medical statement is unnecessary in cases where the claimant refuses an offer of work or referral because he or she is unable to perform the duties of the prospective employment, and the disability is self-evident. Self-evident includes visual observation, well documented medical records, or a previous quit with good cause involving the same working conditions, if the health and working condition factors remain unchanged.

Such was the finding in P-B-263. The claimant left her last employment as a clerk typist because of verified medical problems aggravated by conditions of work. The claimant subsequently refused an offer of reemployment from her former employer because the conditions of work and her chronic medical condition remained unchanged. The Board stated:

Once it has been established that a claimant is unable to work in his or her usual occupation, and is no longer seeking that type of work, a disqualification cannot be assessed for refusal of work in that occupation.

Prohibited Occupations

There are many legal prohibitions issued by competent authorities regarding restrictions upon the employment of individuals with certain health conditions in specific occupations. In general, these laws apply where the individual, because of a health condition, would constitute a hazard to the public. (See AA 235 for additional information.)

If an individual is prohibited by law from working in an occupation, he or she has good cause for refusing work in that occupation.

B. Temporary Health Situations

In some cases, claimants contend that they were prevented from applying for work or going for an interview or performing the work they had verbally accepted because of some emergency, such as an illness or injury.

Such claimants are almost invariably unavailable for the period in which the illness or injury occurs, but they only have good cause for refusal if both of the following conditions exist:

• The illness or injury was of sufficient consequence to make it reasonable to postpone action upon the prospective employment.
• The claimant exercised due diligence in following up on the prospective employment at the earliest possible moment, unless such a follow-up would be a futile gesture.

If a claimant is out of the labor market because of illness or injury, he or she would not be subject to disqualification for refusal or for failure to apply unless:

• He or she is about to return to the labor market, and
• The prospective employment is not due to begin until after the claimant’s return to the labor market.

C. Loss or Impaired Use of Hearing, Speech, Vision, or Limb

Because these conditions are ordinarily lasting disabilities, most affected claimants exhibit a pattern of adjustment. Thus, the record of their previous employment is very significant in determining whether the prospective work is suitable. Even a brief period of experience in working with such a disability may be decisive, particularly if supported by a medical statement.

If the disability occurred since the most recent employment, the claimant’s past pattern of work is of no significance. A medical statement is ordinarily necessary unless the claimant has attended an approved rehabilitation program.

In view of the various public programs for rehabilitation of the disabled and of the Department’s own program of the placement of disabled persons, there is a substantial body of knowledge available to the Department as to the actual capacity of individuals with any particular disability.

If a claimant is advised by a competent public authority, such as a vocational rehabilitation counselor, that certain work is within his or her capacity, a refusal of such work on the grounds of the disability alone would not be with good cause.

Occasionally, a disabled claimant will refuse to follow the instructions of his or her physician, physical therapist, or vocational rehabilitation counselor. A refusal, for reasons of appearance, to use glasses, hearing aids, prosthesis, or other means that would reduce the disability, would negate any good cause provided by the disability. In other words, noncompelling objections to use aids that would help overcome a disability and thus accept employment may remove the basis for good cause established by the disability.

D. Old Age

The fact that a claimant feels he or she is too old for a particular job does not constitute good cause for refusal, nor does it establish that a job is unsuitable.

However, when a claimant knows, through experience, that he or she is physically unable to perform the duties of a particular job, good cause would be established for refusal. For example, good cause would be found for refusing reemployment in a job which the claimant had previously quit because of a disability caused by age, or from which the claimant had been discharged because of inability due to age.

Because age may tend to narrow the opportunities for work in a claimant’s usual occupation, elderly claimants are frequently required to work in other occupations. Thus a claimant who refuses to work in his or her usual occupation for reasons of age, may be offered work in another occupation below the individual’s higher skill and would generally be subject to disqualification for refusal. However, since one of the assets of age is the acquirement of a high degree of skill in one’s usual occupation, such a referral should be looked at carefully because the lesser position may not be suitable. For example, a 68 year old carpenter may no longer be able to do structural framing work because of the heavy lifting requirements of the position; this does not mean that night watchman work is suitable for the claimant because it does not require heavy lifting. The basic principles of Section 1257(b) still apply:

Occasionally, a claimant of advanced age will be receiving a retirement benefit and still be actively in the labor market. If such a claimant refuses an offer of work or referral because acceptance would cause his or her pension to be reduced or suspended, it is a refusal without good cause, unless:

• The loss or reduction of the pension would be permanent, or
• The claimant’s total income, if the employment is accepted, would be less than the individual’s pension benefits.

E. Pregnancy

Cases involving refusal of work due to pregnancy, although not identical to refusals because of health, must be resolved on the same basic principles.

To show that the job involved is unsuitable, or to have good cause for refusal, it must be determined whether the specific job would affect the claimant’s health in her present condition. The fact that the claimant’s doctor states she is able to work is not necessarily determining, as this is usually a general statement and not specifically related to the claimant’s occupation.

Refusals occurring after childbirth are determined on the basis of the refusal.