Bill Summary – FastDemocracy

Special Session of 2020
                               HOUSE BILL No. 2020
                                 By Representative Ousley
                                           6-3

 AN ACT concerning employment security law; relating to disqualification
   for benefits; disqualification begin dates, illness or injury, receipt of
   pension or retirement pay, part-time employment for an educational
   institution; penalties during declaration of state of disaster emergency;
   amending K.S.A. 2019 Supp. 44-706 and repealing the existing section.
 6
 Be it enacted by the Legislature of the State of Kansas:
     Section 1. K.S.A. 2019 Supp. 44-706 is hereby amended to read as
 follows: 44-706. The secretary shall examine whether an individual has
 separated from employment for each week claimed. The secretary shall
 apply the provisions of this section to the individual's most recent
 employment prior to the week claimed. An individual shall be disqualified
 for benefits:
     (a) If the individual left work voluntarily without good cause
 attributable to the work or the employer, subject to the other provisions of
 this subsection. For purposes of this subsection, "good cause" is cause of
 such gravity that would impel a reasonable, not supersensitive, individual
 exercising ordinary common sense to leave employment. Good cause
 requires a showing of good faith of the individual leaving work, including
 the presence of a genuine desire to work. Failure to return to work after
 expiration of approved personal or medical leave, or both, shall be
 considered a voluntary resignation. After a temporary job assignment,
 failure of an individual to affirmatively request an additional assignment
 on the next succeeding workday, if required by the employment
 agreement, after completion of a given work assignment, shall constitute
 leaving work voluntarily. The disqualification shall begin the day
 following the separation on the effective date of the claim and shall
 continue until after the individual has become reemployed and has had
 earnings from insured work of at least three times the individual's weekly
 benefit amount. An individual shall not be disqualified under this
 subsection if:
     (1) The individual was forced to leave work because of illness or
 injury upon the advice of a licensed and practicing health care provider
 and, upon learning of the necessity for absence, immediately notified the
 employer thereof, or the employer consented to the absence, and after
 recovery from the illness or injury, when recovery was certified by a
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 practicing health care provider, the individual returned to the employer and
 offered to perform services and the individual's regular work or
 comparable and suitable work was not available. As used in this paragraph
 "health care provider" means any person licensed by the proper licensing
 authority of any state to engage in the practice of medicine and surgery,
 osteopathy, chiropractic, dentistry, optometry, podiatry or psychology;
     (2) the individual left temporary work to return to the regular
 employer;
     (3) the individual left work to enlist in the armed forces of the United
 States, but was rejected or delayed from entry;
     (4) the spouse of an individual who is a member of the armed forces
 of the United States who left work because of the voluntary or involuntary
 transfer of the individual's spouse from one job to another job, which that
 is for the same employer or for a different employer, at a geographic
 location which that makes it unreasonable for the individual to continue
 work at the individual's job. For the purposes of this provision the term
 "armed forces" means active duty in the army, navy, marine corps, air
 force, coast guard or any branch of the military reserves of the United
 States;
     (5) the individual left work because of hazardous working conditions;
 in determining whether or not working conditions are hazardous for an
 individual, the degree of risk involved to the individual's health, safety and
 morals, the individual's physical fitness and prior training and the working
 conditions of workers engaged in the same or similar work for the same
 and other employers in the locality shall be considered; as used in this
 paragraph, "hazardous working conditions" means working conditions that
 could result in a danger to the physical or mental well-being of the
 individual; each determination as to whether hazardous working
 conditions exist shall include, but shall not be limited to, a consideration
 of: (A) The safety measures used or the lack thereof; and (B) the condition
 of equipment or lack of proper equipment; no work shall be considered
 hazardous if the working conditions surrounding the individual's work are
 the same or substantially the same as the working conditions generally
 prevailing among individuals performing the same or similar work for
 other employers engaged in the same or similar type of activity;
     (6) the individual left work to enter training approved under section
 236(a)(1) of the federal trade act of 1974, provided the work left is not of a
 substantially equal or higher skill level than the individual's past adversely
 affected employment, as defined for purposes of the federal trade act of
 1974, and wages for such work are not less than 80% of the individual's
 average weekly wage as determined for the purposes of the federal trade
 act of 1974;
     (7) the individual left work because of unwelcome harassment of the
     HB 2020                             3
 individual by the employer or another employee of which that the
 employing unit had knowledge of and that would impel the average worker
 to give up such worker's employment;
     (8) the individual left work to accept better work; each determination
 as to whether or not the work accepted is better work shall include, but
 shall not be limited to, consideration of: (A) The rate of pay, the hours of
 work and the probable permanency of the work left as compared to the
 work accepted; (B) the cost to the individual of getting to the work left in
 comparison to the cost of getting to the work accepted; and (C) the
 distance from the individual's place of residence to the work accepted in
 comparison to the distance from the individual's residence to the work left;
     (9) the individual left work as a result of being instructed or requested
 by the employer, a supervisor or a fellow employee to perform a service or
 commit an act in the scope of official job duties which that is in violation
 of an ordinance or statute;
     (10) the individual left work because of a substantial violation of the
 work agreement by the employing unit and, before the individual left, the
 individual had exhausted all remedies provided in such agreement for the
 settlement of disputes before terminating. For the purposes of this
 paragraph, a demotion based on performance does not constitute a
 violation of the work agreement;
     (11) after making reasonable efforts to preserve the work, the
 individual left work due to a personal emergency of such nature and
 compelling urgency that it would be contrary to good conscience to
 impose a disqualification; or
     (12) (A) the individual left work due to circumstances resulting from
 domestic violence, including:
     (i) The individual's reasonable fear of future domestic violence at or
 en route to or from the individual's place of employment;
     (ii) the individual's need to relocate to another geographic area in
 order to avoid future domestic violence;
     (iii) the individual's need to address the physical, psychological and
 legal impacts of domestic violence;
     (iv) the individual's need to leave employment as a condition of
 receiving services or shelter from an agency which that provides support
 services or shelter to victims of domestic violence; or
     (v) the individual's reasonable belief that termination of employment
 is necessary to avoid other situations which that may cause domestic
 violence and to provide for the future safety of the individual or the
 individual's family.
     (B) An individual may prove the existence of domestic violence by
 providing one of the following:
     (i) A restraining order or other documentation of equitable relief by a
     HB 2020                            4
 court of competent jurisdiction;
     (ii) a police record documenting the abuse;
     (iii) documentation that the abuser has been convicted of one or more
 of the offenses enumerated in articles 34 and 35 of chapter 21 of the
 Kansas Statutes Annotated, prior to their repeal, or articles 54 or 55 of
 chapter 21 of the Kansas Statutes Annotated, or K.S.A. 2019 Supp. 21-
 6104, 21-6325, 21-6326 or 21-6418 through 21-6422, and amendments
 thereto, where the victim was a family or household member;
     (iv) medical documentation of the abuse;
     (v) a statement provided by a counselor, social worker, health care
 provider, clergy, shelter worker, legal advocate, domestic violence or
 sexual assault advocate or other professional who has assisted the
 individual in dealing with the effects of abuse on the individual or the
 individual's family; or
     (vi) a sworn statement from the individual attesting to the abuse.
     (C) No evidence of domestic violence experienced by an individual,
 including the individual's statement and corroborating evidence, shall be
 disclosed by the department of labor unless consent for disclosure is given
 by the individual.
     (b) If the individual has been discharged or suspended for misconduct
 connected with the individual's work. The disqualification shall begin the
 day following the separation on the effective date of the claim and shall
 continue until after the individual becomes reemployed and in cases where
 the disqualification is due to discharge for misconduct has had earnings
 from insured work of at least three times the individual's determined
 weekly benefit amount, except that if an individual is discharged for gross
 misconduct connected with the individual's work, such individual shall be
 disqualified for benefits until such individual again becomes employed and
 has had earnings from insured work of at least eight times such
 individual's determined weekly benefit amount. In addition, all wage
 credits attributable to the employment from which that the individual was
 discharged from for gross misconduct connected with the individual's work
 shall be canceled. No such cancellation of wage credits shall affect prior
 payments made as a result of a prior separation.
     (1) For the purposes of this subsection, "misconduct" is defined as a
 violation of a duty or obligation reasonably owed the employer as a
 condition of employment including, but not limited to, a violation of a
 company rule, including a safety rule, if: (A) The individual knew or
 should have known about the rule; (B) the rule was lawful and reasonably
 related to the job; and (C) the rule was fairly and consistently enforced.
     (2) (A) Failure of the employee to notify the employer of an absence
 and an individual's leaving work prior to the end of such individual's
 assigned work period without permission shall be considered prima facie
     HB 2020                             5
 evidence of a violation of a duty or obligation reasonably owed the
 employer as a condition of employment.
    (B) For the purposes of this subsection, misconduct shall include, but
 not be limited to, violation of the employer's reasonable attendance
 expectations if the facts show:
    (i) The individual was absent or tardy without good cause;
    (ii) the individual had knowledge of the employer's attendance
 expectation; and
    (iii) the employer gave notice to the individual that future absence or
 tardiness may or will result in discharge.
    (C) For the purposes of this subsection, if an employee disputes being
 absent or tardy without good cause, the employee shall present evidence
 that a majority of the employee's absences or tardiness were for good
 cause. If the employee alleges that the employee's repeated absences or
 tardiness were the result of health related issues, such evidence shall
 include documentation from a licensed and practicing health care provider
 as defined in subsection (a)(1).
    (3) (A) The term "gross misconduct" as used in this subsection shall
 be construed to mean conduct evincing extreme, willful or wanton
 misconduct as defined by this subsection. Gross misconduct shall include,
 but not be limited to: (i) Theft; (ii) fraud; (iii) intentional damage to
 property; (iv) intentional infliction of personal injury; or (v) any conduct
 that constitutes a felony.
    (B) For the purposes of this subsection, the following shall be
 conclusive evidence of gross misconduct:
    (i) The use of alcoholic liquor, cereal malt beverage or a
 nonprescribed controlled substance by an individual while working;
    (ii) the impairment caused by alcoholic liquor, cereal malt beverage
 or a nonprescribed controlled substance by an individual while working;
    (iii) a positive breath alcohol test or a positive chemical test,
 provided:
    (a) The test was either:
    (1) Required by law and was administered pursuant to the drug free
 workplace act, 41 U.S.C. § 701 et seq.;
    (2) administered as part of an employee assistance program or other
 drug or alcohol treatment program in which that the employee was
 participating in voluntarily or as a condition of further employment;
    (3) requested pursuant to a written policy of the employer of which
 that the employee had knowledge of and was a required condition of
 employment;
    (4) required by law and the test constituted a required condition of
 employment for the individual's job; or
    (5) there was reasonable suspicion to believe that the individual used,
     HB 2020                             6
 had possession of, or was impaired by alcoholic liquor, cereal malt
 beverage or a nonprescribed controlled substance while working;
     (b) the test sample was collected either:
     (1) As prescribed by the drug free workplace act, 41 U.S.C. § 701 et
 seq.;
     (2) as prescribed by an employee assistance program or other drug or
 alcohol treatment program in which that the employee was participating in
 voluntarily or as a condition of further employment;
     (3) as prescribed by the written policy of the employer of which that
 the employee had knowledge of and which that constituted a required
 condition of employment;
     (4) as prescribed by a test which that was required by law and which
 that constituted a required condition of employment for the individual's
 job; or
     (5) at a time contemporaneous with the events establishing probable
 cause;
     (c) the collecting and labeling of a chemical test sample was
 performed by a licensed health care professional or any other individual
 certified pursuant to paragraph (b)(3)(A)(iii)(f) or authorized to collect or
 label test samples by federal or state law, or a federal or state rule or
 regulation having the force or effect of law, including law enforcement
 personnel;
     (d) the chemical test was performed by a laboratory approved by the
 United States department of health and human services or licensed by the
 department of health and environment, except that a blood sample may be
 tested for alcohol content by a laboratory commonly used for that purpose
 by state law enforcement agencies;
     (e) the chemical test was confirmed by gas chromatography, gas
 chromatography-mass spectroscopy or other comparably reliable
 analytical method, except that no such confirmation is required for a blood
 alcohol sample or a breath alcohol test;
     (f) the breath alcohol test was administered by an individual trained
 to perform breath tests, the breath testing instrument used was certified
 and operated strictly according to a description provided by the
 manufacturers and the reliability of the instrument performance was
 assured by testing with alcohol standards; and
     (g) the foundation evidence establishes, beyond a reasonable doubt,
 that the test results were from the sample taken from the individual;
     (iv) an individual's refusal to submit to a chemical test or breath
 alcohol test, provided:
     (a) The test meets the standards of the drug free workplace act, 41
 U.S.C. § 701 et seq.;
     (b) the test was administered as part of an employee assistance
     HB 2020                              7
 program or other drug or alcohol treatment program in which that the
 employee was participating in voluntarily or as a condition of further
 employment;
    (c) the test was otherwise required by law and the test constituted a
 required condition of employment for the individual's job;
    (d) the test was requested pursuant to a written policy of the employer
 of which that the employee had knowledge of and was a required
 condition of employment; or
    (e) there was reasonable suspicion to believe that the individual used,
 possessed or was impaired by alcoholic liquor, cereal malt beverage or a
 nonprescribed controlled substance while working;
    (v) a