Employees who are terminated for statutory “misconduct” are ineligible for benefits under the Illinois Unemployment Insurance Act (“Act”).  “Misconduct” means the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual’s behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit.  820 ILCS 405/602A.  Thus, not every type of “misconduct” results in ineligibility, much to an employer’s dismay.

Under Public Act 99-488, effective January 3, 2016, the Illinois legislature recently changed this definition to include other specific items of “misconduct”:

  1. Falsification of an employment application, or any other documentation provided to the employer, to obtain employment through subterfuge.
  1. Failure to maintain licenses, registrations, and certifications reasonably required by the employer, or those that the individual is required to possess by law, to perform his or her regular job duties, unless the failure is not within the control of the individual.
  1. Knowing, repeated violation of the attendance policies of the employer that are in compliance with State and federal law following a written warning for an attendance violation, unless the individual can demonstrate that he or she has made a reasonable effort to remedy the reason or reasons for the violations or that the reason or reasons for the violations were out of the individual’s control. Attendance policies of the employer shall be reasonable and provided to the individual in writing, electronically, or via posting in the workplace.
  1. Damaging the employer’s property through conduct that is grossly negligent.
  1. Refusal to obey an employer’s reasonable and lawful instruction, unless the refusal is due to the lack of ability, skills, or training for the individual required to obey the instruction or the instruction would result in an unsafe act.
  1. Consuming alcohol or illegal or non-prescribed prescription drugs, or using an impairing substance in an off-label manner, on the employer’s premises during working hours in violation of the employer’s policies.
  1. Reporting to work under the influence of alcohol, illegal or non-prescribed prescription drugs, or an impairing substance used in an off-label manner in violation of the employer’s policies, unless the individual is compelled to report to work by the employer outside of scheduled and on-call working hours and informs the employer that he or she is under the influence of alcohol, illegal or non-prescribed prescription drugs, or an impairing substance used in an off-label manner in violation of the employer’s policies.
  1. Grossly negligent conduct endangering the safety of the individual or co-workers.

The amendment provides that “For purposes of paragraphs 4 and 8, conduct is “grossly negligent” when the individual is, or reasonably should be, aware of a substantial risk that the conduct will result in the harm sought to be prevented and the conduct constitutes a substantial deviation from the standard of care a reasonable person would exercise in the situation.”

The amendment further provides that “Nothing in paragraph 6 or 7 prohibits the lawful use of over-the-counter drug products as defined in Section 206 of the Illinois Controlled Substances Act, provided that the medication does not affect the safe performance of the employee’s work duties.”

Employers should review their employment handbooks and other policy statements to take advantage of this expanded “misconduct” definition.  Some employers may already have similar language in their employee handbooks.  It may be worth including these items in policies to place the employee on clear notice of proscribed behavior.  One of the biggest problems facing employers is item 3, and there are a variety of cases addressing absenteeism and tardiness, with mixed results.  Businesses with considerable employee turnover and high unemployment claims should consider how to more thoroughly address item 3 and enact procedures to investigate excessive absenteeism and tardiness.