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2004 SESSION
047322524Be it enacted by the General Assembly of Virginia:
1. That §§ 60.2-528 and 60.2-618 of the Code of Virginia are amended and reenacted as follows:
§ 60.2-528. Individual benefit charges.
A. An individual's "benefit charges" shall be computed in the following manner:
1. For each week benefits are received, a claimant's "benefit charges" shall be equal to his benefits received for such week.
2. For each week extended benefits are received, pursuant to § 60.2-610 or § 60.2-611, a claimant's "benefit charges" shall be equal to one-half his benefits received for such week. However, a claimant's "benefit charges" for extended benefits attributable to service in the employ of a governmental entity referred to in subdivisions 1 through 3 of subsection A of § 60.2-213 shall be equal to the full amount of such extended benefit.
3. For each week partial benefits are received, the claimant's "benefit charges" shall be computed (i) in the case of regular benefits as in subdivision 1 of this subsection, or (ii) in the case of extended benefits as in subdivision 2 of this subsection.
B. 1. The employing unit from whom such individual was separated, resulting in
the current period of unemployment, shall be the most recent employing unit for
whom such individual has performed services for remuneration (i) during
thirty30 days, whether or not such days are consecutive, or
(ii) during 240 hours. If such individual's unemployment is caused by
separation from an employer, such individual's "benefit charges" for such
period of unemployment shall be deemed the responsibility of the last employer
for (i) thirty30 days or (ii) 240 hours prior to such period of unemployment.
2. Any employer charged with benefits paid shall be notified of the charges
quarterly by the Commission. The amount specified shall be conclusive on the
employer unless, not later than thirty30 days after the notice of benefit
charges was mailed to its last known address or otherwise delivered to it, the
employer files an appeal with the Commission, setting forth the grounds for
such an appeal. Proceedings on appeal to the Commission regarding the amount of
benefit charges under this subsection or a redetermination of such amount shall
be in accordance with the provisions of § 60.2-500. The decision of the
Commission shall be subject to the provisions of § 60.2-500. Any appeal
perfected pursuant to the provisions of this section shall not address any issue
involving the merits or conditions of a claimant's separation from employment.
C. No "benefit charges" shall be deemed the responsibility of an employer of:
1. An individual whose separation from the work of such employer arose as a result of a violation of the law by such individual, which violation led to confinement in any jail or prison;
2. An individual who voluntarily left employment in order to accept other employment, genuinely believing such employment to be permanent;
3. An individual with respect to any weeks in which benefits are claimed and received after such date as that individual refused to accept an offer of rehire by the employer because such individual was in training with approval of the Commission pursuant to § 60.2-613;
4. An individual who voluntarily left employment to enter training approved under § 236 of the Trade Act of 1974 (19 U.S.C. § 2296 et seq.);
5. An individual hired to replace a member of the Reserve of the United States Armed Forces or the National Guard called into active duty as a result of Operation Desert Shield or Operation Desert Storm and whose employment is terminated concurrent with and because of that member's return from active duty;
6. An individual who left employment voluntarily with good cause due to a
personal bona fide medical reason caused by a non-job-related injury or medical
condition; or
7. An individual participating as an inmate in (i) the Diversion Center Incarceration Program pursuant to § 19.2-316.3; (ii) state or local work release programs pursuant to § 53.1-60 or § 53.1-131; (iii) community residential programs pursuant to §§ 53.1-177, 53.1-178, and 53.1-179; or (iv) any similar work release program, whose separation from work arose from conditions of release or parole from such program; or
8. An individual who leaves employment to accompany a spouse, who is a member of the armed services, to a new military assignment from which the individual's place of employment is not reasonably accessible.
§ 60.2-618. Disqualification for benefits.
An individual shall be disqualified for benefits upon separation from the last
employing unit for whom he has worked thirty30 days or 240 hours or from any
subsequent employing unit:
1. For any week benefits are claimed until he has performed services for an
employer (i) during thirty30 days, whether or not such days are consecutive, or
(ii) for 240 hours, and subsequently becomes totally or partially separated from such employment, if
the Commission finds such individual is unemployed because he left work
voluntarily without good cause. As used in this chapter, "good cause" shall not
include (i) voluntarily leaving work with an employer to become self-employed
or (ii) voluntarily leaving work with an employer to accompany or to join his
or her spouse in a new locality, except where an individual leaves employment
to accompany a spouse, who is a member of the armed services, to a new military
assignment from which the individual's place of employment is not reasonably
accessible. An individual shall not be deemed to have voluntarily left work
solely because the separation was in accordance with a seniority-based policy.
2. a. For any week benefits are claimed until he has performed services for an
employer (i) during thirty30 days, whether or not such days are consecutive, or
(ii) for 240 hours, and subsequently becomes totally or partially separated from such employment, if
the Commission finds such individual is unemployed because he has been discharged for misconduct
connected with his work.
b. For the purpose of this subdivision, "misconduct" includes, but shall not be limited to:
(1) An employee's confirmed positive test for a nonprescribed controlled substance, identified as such in Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1, where such test was conducted at the direction of his employer in conjunction with the employer's administration and enforcement of a known workplace drug policy. Such test shall have been performed, and a sample collected, in accordance with scientifically recognized standards by a laboratory accredited by the United States Department of Health and Human Services, or the College of American Pathology, or the American Association for Clinical Chemistry, or the equivalent. The Commission may consider evidence of mitigating circumstances in determining whether misconduct occurred.
(2) An employee's intentionally false or misleading statement of a material nature concerning past criminal convictions made in a written job application furnished to the employer, where such statement was a basis for the termination and the employer terminated the employee promptly upon the discovery thereof. The Commission may consider evidence of mitigating circumstances in determining whether misconduct occurred.
3. a. If it is determined by the Commission that such individual has failed,
without good cause, either to apply for available, suitable work when so
directed by the employment office or the Commission or to accept suitable work
when offered him. The disqualification shall commence with the week in which
such failure occurred, and shall continue for the period of unemployment next
ensuing until he has performed services for an employer (i) during thirty30
days, whether or not such days are consecutive, or (ii) for 240 hours, and subsequently becomes
totally or partially separated from such employment.
b. In determining whether or not any work is suitable for an individual, the Commission shall consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience, his length of unemployment and the accessibility of the available work from his residence.
c. No work shall be deemed suitable and benefits shall not be denied under this title to any otherwise eligible individual for refusing to accept new work under any of the following conditions:
(1) If the position offered is vacant due directly to a strike, lockout, or other labor dispute;
(2) If the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; or
(3) If as a condition of being employed the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.
d. No individual shall be qualified for benefits during any week that such
individual, in connection with an offer of suitable work, has a confirmed
positive test for a nonprescribed controlled substance, identified as such in
Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1, if the test is (i) required as
a condition of employment and (ii) performed, and a sample is collected, in
accordance with scientifically recognized standards by a laboratory accredited by
the United States Department of Health and Human Services, or the College of
American Pathology, or the American Association for Clinical Chemistry, or the
equivalent. The disqualification shall commence with the week in which such a
test was conducted, and shall continue for the period of unemployment next
ensuing until he has performed services for an employer (i) during thirty 30
days, whether or not such days are consecutive, or (ii) for 240 hours, and subsequently becomes
totally or partially separated from such employment.
4. For fifty-two 52 weeks, beginning with the date of the determination or
decision, if the Commission finds that such individual, within thirty-six36
calendar months immediately preceding such determination or decision, has made a false statement or
representation knowing it to be false, or has knowingly failed to disclose a
material fact, to obtain or increase any benefit or payment under this title,
the unemployment compensation of any other state, or any other program of the
federal government which is administered in any way under this title, either
for himself or any other person. Additionally, such individual shall be
ineligible for benefits until he has repaid the Commission the sum which has
been fraudulently obtained.
5. If such separation arose as a result of an unlawful act which resulted in a
conviction and after his release from prison or jail until he has performed
services for an employer for (i) thirty 30 days, whether or not such days are
consecutive, or (ii) 240 hours, and subsequently becomes totally or partially separated from such
employment.