44-706.Disqualification for benefits.An individual shall be disqualified for benefits:
(a) If the individual left work voluntarily without good cause attributableto the work or the employer, subject to the other provisions of this subsection(a).Failure to return to work after expiration of approved personal or medicalleave, or both, shall be considered a voluntary resignation.After a temporary job assignment, failure of an individual toaffirmatively request an additional assignment on the next succeeding workday,if required by the employment agreement, after completion of a given workassignment, shall constitute leaving work voluntarily. The disqualificationshall begin the day following the separation and shall continue until after theindividual has become reemployed and has had earnings from insured work of atleast three times the individual's weekly benefit amount. An individual shallnot be disqualified under this subsection (a) if:
(1) The individual was forced to leave work because of illness or injury uponthe advice of a licensed and practicing health care provider and, upon learningof the necessity for absence, immediately notified the employer thereof, or theemployer consented to the absence, and after recovery from the illness orinjury, when recovery was certified by a practicing health care provider, theindividual returned to the employer and offered to perform services and theindividual's regular work or comparable and suitable work was not available; asused in this paragraph (1) "health care provider" means any person licensed bythe proper licensing authority of any state to engage in the practice ofmedicine and surgery, osteopathy, chiropractic, dentistry, optometry, podiatryor 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 UnitedStates, but was rejected or delayed from entry;
(4) the individual left work because of the voluntary or involuntary transferof the individual's spouse from one job to another job, which is for the sameemployer or for a different employer, at a geographic location which makes itunreasonable for the individual to continue work at the individual's job;
(5) the individual left work because of hazardous working conditions; indetermining whether or not working conditions are hazardous for an individual,the degree of risk involved to the individual's health, safety and morals, theindividual's physical fitness and prior training and the working conditions ofworkers engaged in the same or similar work for the same and other employers inthe locality shall be considered; as used in this paragraph (5), "hazardousworking conditions" means working conditions that could result in a danger tothe physical or mental well-being of the individual; each determination as towhether hazardous working conditions exist shall include, but shall not belimited to, a consideration of (A) the safety measures used or the lackthereof, and (B) the condition of equipment or lack of proper equipment; nowork shall be considered hazardous if the working conditions surrounding theindividual's work are the same or substantially the same as the workingconditions generally prevailing among individuals performing the same orsimilar work for other employers engaged in the same or similar type ofactivity;
(6) the individual left work to enter training approved under section236(a)(1) of the federal trade act of 1974, provided the work left is not of asubstantially equal or higher skill level than the individual's past adverselyaffected 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 averageweekly wage as determined for the purposes of the federal trade act of 1974;
(7) the individual left work because of unwelcome harassment of theindividual by the employer or another employee of which the employing unit hadknowledge;
(8) the individual left work to accept better work; each determination as towhether or not the work accepted is better work shall include, but shall not belimited to, consideration of (A) the rate of pay, the hours of work and theprobable permanency of the work left as compared to the work accepted, (B) thecost to the individual of getting to the work left in comparison to the cost ofgetting to the work accepted, and (C) the distance from the individual's placeof residence to the work accepted in comparison to the distance from theindividual's residence to the work left;
(9) the individual left work as a result of being instructed or requested bythe employer, a supervisor or a fellow employee to perform a service or commitan act in the scope of official job duties which is in violation of anordinance or statute;
(10) the individual left work because of a violation of the work agreement bythe employing unit and, before the individual left, the individual hadexhausted all remedies provided in such agreement for the settlement ofdisputes before terminating;
(11) after making reasonable efforts to preserve the work, the individualleft work due to a personal emergency of such nature and compelling urgencythat it would be contrary to good conscience to impose a disqualification;or
(12) (A) the individual left work due to circumstances resultingfromdomesticviolence, including:
(i) The individual's reasonable fear of future domesticviolence at or enroute to or from the individual's place of employment; or
(ii) the individual's need to relocate to anothergeographicarea in order toavoid future domestic violence; or
(iii) the individual's need to address the physical,psychological and legalimpacts of domestic violence; or
(iv) the individual's need to leave employment as acondition of receivingservices or shelter from an agency which provides support services or shelterto victims of domestic violence; or
(v) the individual's reasonable belief that termination ofemployment isnecessary to avoid other situations which may cause domestic violence and toprovide for the future safety of the individual or the individual's family.
(B) An individual may prove the existence of domesticviolence by providingone of the following:
(i) A restraining order or other documentation of equitablerelief by a courtof competent jurisdiction; or
(ii) a police record documenting the abuse; or
(iii) documentation that the abuser has been convicted ofone or more of theoffenses enumerated in articles 34 and 35 of chapter 21 of the Kansas StatutesAnnotated, and amendments thereto, where the victim was a family or householdmember; or
(iv) medical documentation of the abuse; or
(v) a statement provided by a counselor, social worker,health care provider,clergy, shelter worker, legal advocate, domestic violence or sexual assaultadvocate or other professional who has assisted the individual in dealing withthe effects of abuse on the individual or the individual's family; or
(vi) a sworn statement from the individual attesting to theabuse.
(C) No evidence of domestic violence experienced by anindividual, includingthe individual's statement and corroborating evidence, shall be disclosed bythe department of labor unless consent fordisclosure is given by theindividual.
(b) If the individual has been discharged for misconductconnected with the individual's work. The disqualification shall begin the dayfollowing the separation and shall continue until after the individual becomesreemployed and has had earnings from insured work of at least three times theindividual's determined weekly benefit amount, except that if an individual isdischarged for gross misconduct connected with the individual's work, suchindividual shall be disqualified for benefits until such individual againbecomes employed and has had earnings from insured work of at least eight timessuch individual's determined weekly benefit amount. In addition, all wagecredits attributable to the employment from which the individual was dischargedfor gross misconduct connected with the individual's work shall be canceled. Nosuch cancellation of wage credits shall affect prior payments made as a resultof a prior separation.
(1) For the purposes of this subsection (b), "misconduct"is defined as a violation of a duty or obligation reasonably owed the employeras a condition of employment. The term "gross misconduct" as used in thissubsection (b) shall be construed to mean conduct evincingextreme, willful or wanton misconduct as defined by this subsection(b).Failure of the employee to notify the employer of an absence shall beconsidered prima facie evidence of a violation of a duty or obligationreasonably owed the employer as a condition of employment.
(2) For the purposes of this subsection (b), the use of orimpairment caused by alcoholic liquor, acereal malt beverage or anonprescribed controlled substance by an individual while working shall beconclusive evidence of misconduct and the possession ofalcoholic liquor,a cereal malt beverage or a nonprescribed controlled substance by an individualwhile working shall be prima facie evidence of conduct which is a violation ofa duty or obligation reasonably owed to the employer as a condition ofemployment.Alcoholic liquor shall be defined as provided in K.S.A. 41-102, andamendments thereto. Cereal malt beverage shall be defined as provided inK.S.A. 41-2701, and amendments thereto. Controlled substance shall bedefined as provided in K.S.A. 2009 Supp. 21-36a01, and amendmentsthereto. As used in thissubsection (b)(2), "required by law" means required by a federal or state law,a federal or state rule or regulation having the force and effect of law, acounty resolution or municipal ordinance, or a policy relating to publicsafety adopted in open meeting by the governing body of any special district orother local governmental entity. Chemical testshall include, but is not limited to, tests of urine, blood or saliva. Apositive chemical test shall mean a chemical result showing a concentration ator above the levels listed in K.S.A. 44-501, and amendments thereto, for thedrugs or abuse listed therein. A positive breath test shall mean a test resultshowing an alcohol concentration of .04 or greater. Alcohol concentration meansthe number of grams of alcohol per 210 liters of breath. Anindividual's refusal to submit to a chemical test or breath alcohol testshall be conclusiveevidence of misconduct if the testmeets thestandards of the drug free workplace act, 41 U.S.C. 701 et seq.;the test wasadministered as part of an employee assistance program or other drug or alcoholtreatment program in which the employee was participating voluntarily or as acondition of further employment; the test was otherwise requiredby law and thetest constituted a required condition of employment for the individual'sjob; the test was requested pursuant to a written policy of theemployer of which the employee had knowledge and was a required condition ofemployment;or there was probable cause to believe that the individual used,possessed orwas impaired by alcoholic liquor, a cerealmalt beverage or a controlledsubstance while working. A positive breath alcohol testor a positive chemical test shall beconclusive evidence to prove misconductif thefollowing conditions are met:
(A) Either (i) the test was required by law and wasadministeredpursuant to the drug free workplace act, 41 U.S.C. 701 et seq., (ii) the testwas administered as part of an employee assistance program or other drug oralcohol treatment program in which the employee was participating voluntarilyor as a condition of further employment, (iii) the test was requestedpursuant to a written policy of the employer of which the employee hadknowledge and was a required condition ofemployment, (iv) the test was required by law andthe test constituted a required condition of employment for the individual'sjob, or (v) there was probable cause to believe that theindividual used, hadpossession of, or was impaired by alcoholicliquor, the cereal maltbeverage or the controlled substance while working;
(B) the test sample was collected either (i) as prescribed by the drug freeworkplace act, 41 U.S.C. 701 et seq., (ii) as prescribed by an employeeassistance program or other drug or alcohol treatment program in which theemployee was participating voluntarily or as a condition of further employment,(iii) as prescribed by the written policy of the employer of which theemployee had knowledge and whichconstituted a required condition of employment, (iv) as prescribed by atest which was required by law and which constituted arequired condition of employment for the individual's job, or(v) at a timecontemporaneous with the events establishing probable cause;
(C) the collecting and labeling of a chemical test samplewas performed by alicensed health care professional or any other individual certified pursuantto paragraph (b)(2)(F) orauthorized to collector label test samples by federalor state law, or a federal or state rule or regulation having the force oreffect of law, including law enforcementpersonnel;
(D) the chemical test was performed by a laboratory approved by theUnited Statesdepartment of health and human services or licensed by the department of healthand environment, except that a blood sample may be tested for alcohol contentby a laboratory commonly used for that purpose by state law enforcementagencies;
(E) the chemical test was confirmed by gas chromatography, gaschromatography-massspectroscopy or other comparably reliable analytical method, except that nosuch confirmation is required for a blood alcohol sample or a breath alcoholtest;
(F) the breath alcohol test was administered by an individual trained toperform breath tests, the breath testing instrument used was certified andoperated strictly according to description provided by the manufacturers andthe reliability of the instrument performance was assured by testing withalcohol standards; and
(G) the foundation evidence must establish, beyond a reasonable doubt,thatthe test results were from the sample taken from the individual.
(3) (A) For the purposes of this subsection (b), misconductshall include, but not be limited to repeated absence, includingincarceration, resulting in absence from work of three days or longer,excluding Saturdays, Sundays and legal holidays, andlateness, fromscheduled work if the facts show:
(i) The individual was absent without good cause;
(ii) the absence was in violation of the employer's writtenabsenteeismpolicy;
(iii) the employer gave or sent written notice to theindividual, at theindividual's last known address, that future absence may or will result indischarge; and
(iv) the employee had knowledge of the employer's writtenabsenteeism policy.
(B) For the purposes of this subsection (b), if an employeedisputes being absent without goodcause, the employeeshall present evidence that a majority of the employee's absences were for goodcause.If the employee alleges that the employee's repeated absences were theresultof health related issues, such evidence shall include documentation from alicensed and practicing health care provider as defined in subsection(a)(1).
(4) An individual shall not be disqualified under this subsectionif the individual is discharged under the following circumstances:
(A) The employer discharged the individual after learning the individual wasseeking other work or when the individual gave notice of future intent to quit;
(B) the individual was making a good-faith effort to do the assigned work butwas discharged due to: (i) Inefficiency, (ii) unsatisfactory performance due toinability, incapacity or lack of training or experience, (iii) isolatedinstances of ordinary negligence or inadvertence, (iv) good-faith errors injudgment or discretion, or (v) unsatisfactory work or conduct due tocircumstances beyond the individual's control; or
(C) the individual's refusal to perform work in excess of the contract ofhire.
(c) If the individual has failed, without good cause, toeither apply for suitable work when so directed by the employment office of thesecretary of labor, or to accept suitable workwhen offered to theindividual by the employment office, the secretary oflabor, or anemployer, such disqualification shall begin with the week in which such failureoccurred and shall continue until the individual becomes reemployed and has hadearnings from insured work of at least three times such individual's determinedweekly benefit amount. In determining whether or not any work is suitable foran individual, the secretary of labor, or aperson or personsdesignated by the secretary, shall consider the degree of risk involved tohealth, safety and morals, physical fitness and prior training, experience andprior earnings, length of unemployment and prospects for securing local work inthe individual's customary occupation or work for which the individual isreasonably fitted by training or experience, and the distance of the availablework from the individual's residence. Notwithstanding any other provisions ofthis act, an otherwise eligible individual shall not be disqualified forrefusing an offer of suitable employment, or failing to apply for suitableemployment when notified by an employment office, or for leaving theindividual's most recent work accepted during approved training, includingtraining approved under section 236(a)(1) of the trade act of 1974, if theacceptance of or applying for suitable employment or continuing such work wouldrequire the individual to terminate approved training and no work shall bedeemed suitable and benefits shall not be denied under this act to anyotherwise eligible individual for refusing to accept new work under any of thefollowing conditions: (1) If the position offered is vacant due directly to astrike, lockout or other labor dispute; (2) if the remuneration, hours or otherconditions of the work offered are substantially less favorable to theindividual than those prevailing for similar work in the locality; (3) if as acondition of being employed, the individual would be required to join or toresign from or refrain from joining any labor organization; (4) if theindividual left employment as a result of domestic violence, and the positionoffered does not reasonably accommodate the individual's physical,psychological, safety, and/or legal needs relating to suchdomesticviolence.
(d) For any week with respect to which the secretary oflabor, or a person or persons designated by thesecretary, finds thatthe individual's unemployment is due to a stoppage of work which exists becauseof a labor dispute or there would have been a work stoppage had normaloperations not been maintained with other personnel previously and currentlyemployed by the same employer at the factory, establishment or other premisesat which the individual is or was last employed, except that this subsection(d) shall not apply if it is shown to the satisfaction of thesecretary of labor, or a person or personsdesignated by thesecretary, that: (1) The individual is not participating in or financing ordirectly interested in the labor dispute which caused the stoppage of work; and(2) the individual does not belong to a grade or class of workers of which,immediately before the commencement of the stoppage, there were membersemployed at the premises at which the stoppage occurs any of whom areparticipating in or financing or directly interested in the dispute. If in anycase separate branches of work which are commonly conducted as separatebusinesses in separate premises are conducted in separate departments of thesame premises, each such department shall, for the purpose of this subsection(d) be deemed to be a separate factory, establishment orother premises. For the purposes of this subsection (d),failure or refusal to cross a picket line or refusal for any reason during thecontinuance of such labor dispute to accept the individual's available andcustomary work at the factory, establishment or other premises where theindividual is or was last employed shall be considered as participation andinterest in the labor dispute.
(e) For any week with respect to which or a part of whichthe individual has received or is seeking unemployment benefits under theunemployment compensation law of any other state or of the United States,except that if the appropriate agency of such other state or the United Statesfinally determines that the individual is not entitled to such unemploymentbenefits, this disqualification shall not apply.
(f) For any week with respect to which the individual isentitled to receive any unemployment allowance or compensation granted by theUnited States under an act of congress to ex-service men and women inrecognition of former service with the military or naval services of the UnitedStates.
(g) For the period of one year beginning with the first dayfollowing the last week of unemployment for which the individual receivedbenefits, or for one year from the date the act was committed, whichever is thelater, if the individual, or another in such individual's behalf with theknowledge of the individual, has knowingly made a false statement orrepresentation, or has knowingly failed to disclose a material fact to obtainor increase benefits under this act or any other unemployment compensation lawadministered by the secretary of labor.
(h) For any week with respect to which the individual isreceiving compensation for temporary total disability or permanent totaldisability under the workmen's compensation law of any state or under a similarlaw of the United States.
(i) For any week of unemployment on the basis of service inan instructional, research or principal administrative capacity for aneducational institution as defined in subsection (v) of K.S.A. 44-703,andamendments thereto, if such week begins during the period between twosuccessive academic years or terms or, when an agreement provides instead for asimilar period between two regular but not successive terms during such periodor during a period of paid sabbatical leave provided for in the individual'scontract, if the individual performs such services in the first of suchacademic years or terms and there is a contract or a reasonable assurance thatsuch individual will perform services in any such capacity for any educationalinstitution in the second of such academic years or terms.
(j) For any week of unemployment on the basis of service inany capacity other than service in an instructional, research, oradministrative capacity in an educational institution, as defined in subsection(v) of K.S.A. 44-703, and amendments thereto, if such week begins duringtheperiod between two successive academic years or terms if the individualperforms such services in the first of such academic years or terms and thereis a reasonable assurance that the individual will perform such services in thesecond of such academic years or terms, except that if benefits are denied tothe individual under this subsection (j) and the individualwas not offered an opportunity to perform such services for the educationalinstitution for the second of such academic years or terms, such individualshall be entitled to a retroactive payment of benefits for each week for whichthe individual filed a timely claim for benefits and for which benefits weredenied solely by reason of this subsection (j).
(k) For any week of unemployment on the basis of service inany capacity for an educational institution as defined in subsection (v) ofK.S.A. 44-703, and amendments thereto, if such week begins during anestablishedand customary vacation period or holiday recess, if the individual performsservices in the period immediately before such vacation period or holidayrecess and there is a reasonable assurance that such individual will performsuch services in the period immediately following such vacation period orholiday recess.
(l) For any week of unemployment on the basis of anyservices, substantially all of which consist of participating in sports orathletic events or training or preparing to so participate, if such week beginsduring the period between two successive sport seasons or similar period ifsuch individual performed services in the first of such seasons or similarperiods and there is a reasonable assurance that such individual will performsuch services in the later of such seasons or similar periods.
(m) For any week on the basis of services performed by analien unless such alien is an individual who was lawfully admitted forpermanent residence at the time such services were performed, was lawfullypresent for purposes of performing such services, or was permanently residingin the United States under color of law at the time such services wereperformed, including an alien who was lawfully present in the United States asa result of the application of the provisions of section 212(d)(5) of thefederal immigration and nationality act. Any data or information required ofindividuals applying for benefits to determine whether benefits are not payableto them because of their alien status shall be uniformly required from allapplicants for benefits. In the case of an individual whose application forbenefits would otherwise be approved, no determination that benefits to suchindividual are not payable because of such individual's alien status shall bemade except upon a preponderance of the evidence.
(n) For any week in which an individual is receiving agovernmental or other pension, retirement or retired pay, annuity or othersimilar periodic payment under a plan maintained by a base period employer andto which the entire contributions were provided by such employer, except that:(1) If the entire contributions to such plan were provided by the base periodemployer but such individual's weekly benefit amount exceeds such governmentalor other pension, retirement or retired pay, annuity or other similar periodicpayment attributable to such week, the weekly benefit amount payable to theindividual shall be reduced (but not below zero) by an amount equal to theamount of such pension, retirement or retired pay, annuity or other similarperiodic payment which is attributable to such week; or (2) if only a portionof contributions to such plan were provided by the base period employer, theweekly benefit amount payable to such individual for such week shall be reduced(but not below zero) by the prorated weekly amount of the pension, retirementor retired pay, annuity or other similar periodic payment after deduction ofthat portion of the pension, retirement or retired pay, annuity or othersimilar periodic payment that is directly attributable to the percentage of thecontributions made to the plan by such individual; or (3) if the entirecontributions to the plan were provided by such individual, or by theindividual and an employer (or any person or organization) who is not a baseperiod employer, no reduction in the weekly benefit amount payable to theindividual for such week shall be made under this subsection(n); or (4) whatever portion of contributions to such planwere providedby the base period employer, if the services performed for the employer by suchindividual during the base period, or remuneration received for the services,did not affect the individual's eligibility for, or increased the amount of,such pension, retirement or retired pay, annuity or other similar periodicpayment, no reduction in the weekly benefit amount payable to the individualfor such week shall be made under this subsection (n). Noreductionshall be made for paymentsmade under the social security act or railroad retirement act of 1974.
(o) For any week of unemployment on the basis of servicesperformed in any capacity and under any of the circumstances described insubsection (i), (j) or (k) which an individualperformed in an educational institution while in the employ of an educationalservice agency. For the purposes of this subsection (o), theterm "educational service agency" means a governmental agency or entity whichis established and operated exclusively for the purpose of providing suchservices to one or more educational institutions.
(p) For any week of unemployment on the basis of service asa school bus or other motor vehicle driver employed by a private contractor totransport pupils, students and school personnel to or from school-relatedfunctions or activities for an educational institution, as defined insubsection (v) of K.S.A. 44-703, and amendments thereto, if such weekbeginsduring the period between two successive academic years or during a similarperiod between two regular terms, whether or not successive, if the individualhas a contract or contracts, or a reasonable assurance thereof, to performservices in any such capacity with a private contractor for any educationalinstitution for both such academic years or both such terms. An individualshall not be disqualified for benefits as provided in this subsection(p) for any week of unemployment on the basis of service as abus or other motor vehicle driver employed by a private contractor to transportpersons to or from nonschool-related functions or activities.
(q) For any week of unemployment on the basis of servicesperformed by the individual in any capacity and under any of the circumstancesdescribed in subsection (i), (j), (k) or (o)which are provided to or on behalf of an educational institution, as defined insubsection (v) of K.S.A. 44-703, and amendments thereto, while theindividual isin the employ of an employer which is a governmental entity, Indian tribe orany employer described in section 501(c)(3) of the federal internal revenuecode of 1986 which is exempt from income under section 501(a) of the code.
(r) For any week in which an individual is registered atand attending an established school, training facility or other educationalinstitution, or is on vacation during or between two successive academic yearsor terms. An individual shall not be disqualified for benefits as provided inthis subsection (r) provided:
(1) The individual was engaged in full-time employment concurrent with theindividual's school attendance; or
(2) the individual is attending approved training as defined in subsection(s) of K.S.A. 44-703 and amendments thereto; or
(3) the individual is attending evening, weekend or limited day time classes,which would not affect availability for work, and is otherwise eligible undersubsection (c) of K.S.A. 44-705 and amendments thereto.
(s) For any week with respect to which an individual isreceiving or has received remuneration in the form of a back pay award orsettlement. The remuneration shall be allocated to the week or weeks in themanner as specified in the award or agreement, or in the absence of suchspecificity in the award or agreement, such remuneration shall be allocated tothe week or weeks in which such remuneration, in the judgment of the secretary,would have been paid.
(1) For any such weeks that an individual receives remuneration in theform of a back pay award or settlement, an overpayment will be established inthe amount of unemployment benefits paid and shall be collected from theclaimant.
(2) If an employer chooses to withhold from a back pay award or settlement,amounts paid to a claimant while they claimed unemployment benefits, suchemployer shall pay the department the amount withheld. With respect to suchamount, the secretary shall have available all of the collection remediesauthorized or provided in K.S.A. 44-717, and amendments thereto.
(t) If the individual has been discharged for failing apreemployment drugscreen required by the employer and if such discharge occurs not later thanseven days after the employer is notified of the results of such drugscreen.The disqualificationshall begin the day following the separation and shall continue until after theindividual becomes reemployed and has had earnings from insured work of atleast three times the individual's determined weekly benefit amount.
(u) If the individual was found not to have a disqualifying adjudicationorconviction under K.S.A. 39-970, and amendments thereto, or K.S.A. 65-5117, andamendments thereto, was hired and then was subsequently convicted of adisqualifying felony under K.S.A. 39-970, and amendments thereto, or K.S.A.65-5117, and amendments thereto, and discharged pursuant to K.S.A. 39-970, andamendments thereto, or K.S.A. 65-5117, and amendments thereto. Thedisqualification shall begin the day following the separation and shallcontinue until after the individual becomes reemployed and has had earningsfrom insured work of at least three times the individual's determined weeklybenefit amount.
44-706.Disqualification for benefits.An individual shall be disqualified for benefits:
(a) If the individual left work voluntarily without good cause attributableto the work or the employer, subject to the other provisions of this subsection(a).Failure to return to work after expiration of approved personal or medicalleave, or both, shall be considered a voluntary resignation.After a temporary job assignment, failure of an individual toaffirmatively request an additional assignment on the next succeeding workday,if required by the employment agreement, after completion of a given workassignment, shall constitute leaving work voluntarily. The disqualificationshall begin the day following the separation and shall continue until after theindividual has become reemployed and has had earnings from insured work of atleast three times the individual's weekly benefit amount. An individual shallnot be disqualified under this subsection (a) if:
(1) The individual was forced to leave work because of illness or injury uponthe advice of a licensed and practicing health care provider and, upon learningof the necessity for absence, immediately notified the employer thereof, or theemployer consented to the absence, and after recovery from the illness orinjury, when recovery was certified by a practicing health care provider, theindividual returned to the employer and offered to perform services and theindividual's regular work or comparable and suitable work was not available; asused in this paragraph (1) "health care provider" means any person licensed bythe proper licensing authority of any state to engage in the practice ofmedicine and surgery, osteopathy, chiropractic, dentistry, optometry, podiatryor 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 UnitedStates, but was rejected or delayed from entry;
(4) the individual left work because of the voluntary or involuntary transferof the individual's spouse from one job to another job, which is for the sameemployer or for a different employer, at a geographic location which makes itunreasonable for the individual to continue work at the individual's job;
(5) the individual left work because of hazardous working conditions; indetermining whether or not working conditions are hazardous for an individual,the degree of risk involved to the individual's health, safety and morals, theindividual's physical fitness and prior training and the working conditions ofworkers engaged in the same or similar work for the same and other employers inthe locality shall be considered; as used in this paragraph (5), "hazardousworking conditions" means working conditions that could result in a danger tothe physical or mental well-being of the individual; each determination as towhether hazardous working conditions exist shall include, but shall not belimited to, a consideration of (A) the safety measures used or the lackthereof, and (B) the condition of equipment or lack of proper equipment; nowork shall be considered hazardous if the working conditions surrounding theindividual's work are the same or substantially the same as the workingconditions generally prevailing among individuals performing the same orsimilar work for other employers engaged in the same or similar type ofactivity;
(6) the individual left work to enter training approved under section236(a)(1) of the federal trade act of 1974, provided the work left is not of asubstantially equal or higher skill level than the individual's past adverselyaffected 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 averageweekly wage as determined for the purposes of the federal trade act of 1974;
(7) the individual left work because of unwelcome harassment of theindividual by the employer or another employee of which the employing unit hadknowledge;
(8) the individual left work to accept better work; each determination as towhether or not the work accepted is better work shall include, but shall not belimited to, consideration of (A) the rate of pay, the hours of work and theprobable permanency of the work left as compared to the work accepted, (B) thecost to the individual of getting to the work left in comparison to the cost ofgetting to the work accepted, and (C) the distance from the individual's placeof residence to the work accepted in comparison to the distance from theindividual's residence to the work left;
(9) the individual left work as a result of being instructed or requested bythe employer, a supervisor or a fellow employee to perform a service or commitan act in the scope of official job duties which is in violation of anordinance or statute;
(10) the individual left work because of a violation of the work agreement bythe employing unit and, before the individual left, the individual hadexhausted all remedies provided in such agreement for the settlement ofdisputes before terminating;
(11) after making reasonable efforts to preserve the work, the individualleft work due to a personal emergency of such nature and compelling urgencythat it would be contrary to good conscience to impose a disqualification;or
(12) (A) the individual left work due to circumstances resultingfromdomesticviolence, including:
(i) The individual's reasonable fear of future domesticviolence at or enroute to or from the individual's place of employment; or
(ii) the individual's need to relocate to anothergeographicarea in order toavoid future domestic violence; or
(iii) the individual's need to address the physical,psychological and legalimpacts of domestic violence; or
(iv) the individual's need to leave employment as acondition of receivingservices or shelter from an agency which provides support services or shelterto victims of domestic violence; or
(v) the individual's reasonable belief that termination ofemployment isnecessary to avoid other situations which may cause domestic violence and toprovide for the future safety of the individual or the individual's family.
(B) An individual may prove the existence of domesticviolence by providingone of the following:
(i) A restraining order or other documentation of equitablerelief by a courtof competent jurisdiction; or
(ii) a police record documenting the abuse; or
(iii) documentation that the abuser has been convicted ofone or more of theoffenses enumerated in articles 34 and 35 of chapter 21 of the Kansas StatutesAnnotated, and amendments thereto, where the victim was a family or householdmember; or
(iv) medical documentation of the abuse; or
(v) a statement provided by a counselor, social worker,health care provider,clergy, shelter worker, legal advocate, domestic violence or sexual assaultadvocate or other professional who has assisted the individual in dealing withthe effects of abuse on the individual or the individual's family; or
(vi) a sworn statement from the individual attesting to theabuse.
(C) No evidence of domestic violence experienced by anindividual, includingthe individual's statement and corroborating evidence, shall be disclosed bythe department of labor unless consent fordisclosure is given by theindividual.
(b) If the individual has been discharged for misconductconnected with the individual's work. The disqualification shall begin the dayfollowing the separation and shall continue until after the individual becomesreemployed and has had earnings from insured work of at least three times theindividual's determined weekly benefit amount, except that if an individual isdischarged for gross misconduct connected with the individual's work, suchindividual shall be disqualified for benefits until such individual againbecomes employed and has had earnings from insured work of at least eight timessuch individual's determined weekly benefit amount. In addition, all wagecredits attributable to the employment from which the individual was dischargedfor gross misconduct connected with the individual's work shall be canceled. Nosuch cancellation of wage credits shall affect prior payments made as a resultof a prior separation.
(1) For the purposes of this subsection (b), "misconduct"is defined as a violation of a duty or obligation reasonably owed the employeras a condition of employment. The term "gross misconduct" as used in thissubsection (b) shall be construed to mean conduct evincingextreme, willful or wanton misconduct as defined by this subsection(b).Failure of the employee to notify the employer of an absence shall beconsidered prima facie evidence of a violation of a duty or obligationreasonably owed the employer as a condition of employment.
(2) For the purposes of this subsection (b), the use of orimpairment caused by alcoholic liquor, acereal malt beverage or anonprescribed controlled substance by an individual while working shall beconclusive evidence of misconduct and the possession ofalcoholic liquor,a cereal malt beverage or a nonprescribed controlled substance by an individualwhile working shall be prima facie evidence of conduct which is a violation ofa duty or obligation reasonably owed to the employer as a condition ofemployment.Alcoholic liquor shall be defined as provided in K.S.A. 41-102, andamendments thereto. Cereal malt beverage shall be defined as provided inK.S.A. 41-2701, and amendments thereto. Controlled substance shall bedefined as provided in K.S.A. 2009 Supp. 21-36a01, and amendmentsthereto. As used in thissubsection (b)(2), "required by law" means required by a federal or state law,a federal or state rule or regulation having the force and effect of law, acounty resolution or municipal ordinance, or a policy relating to publicsafety adopted in open meeting by the governing body of any special district orother local governmental entity. Chemical testshall include, but is not limited to, tests of urine, blood or saliva. Apositive chemical test shall mean a chemical result showing a concentration ator above the levels listed in K.S.A. 44-501, and amendments thereto, for thedrugs or abuse listed therein. A positive breath test shall mean a test resultshowing an alcohol concentration of .04 or greater. Alcohol concentration meansthe number of grams of alcohol per 210 liters of breath. Anindividual's refusal to submit to a chemical test or breath alcohol testshall be conclusiveevidence of misconduct if the testmeets thestandards of the drug free workplace act, 41 U.S.C. 701 et seq.;the test wasadministered as part of an employee assistance program or other drug or alcoholtreatment program in which the employee was participating voluntarily or as acondition of further employment; the test was otherwise requiredby law and thetest constituted a required condition of employment for the individual'sjob; the test was requested pursuant to a written policy of theemployer of which the employee had knowledge and was a required condition ofemployment;or there was probable cause to believe that the individual used,possessed orwas impaired by alcoholic liquor, a cerealmalt beverage or a controlledsubstance while working. A positive breath alcohol testor a positive chemical test shall beconclusive evidence to prove misconductif thefollowing conditions are met:
(A) Either (i) the test was required by law and wasadministeredpursuant to the drug free workplace act, 41 U.S.C. 701 et seq., (ii) the testwas administered as part of an employee assistance program or other drug oralcohol treatment program in which the employee was participating voluntarilyor as a condition of further employment, (iii) the test was requestedpursuant to a written policy of the employer of which the employee hadknowledge and was a required condition ofemployment, (iv) the test was required by law andthe test constituted a required condition of employment for the individual'sjob, or (v) there was probable cause to believe that theindividual used, hadpossession of, or was impaired by alcoholicliquor, the cereal maltbeverage or the controlled substance while working;
(B) the test sample was collected either (i) as prescribed by the drug freeworkplace act, 41 U.S.C. 701 et seq., (ii) as prescribed by an employeeassistance program or other drug or alcohol treatment program in which theemployee was participating voluntarily or as a condition of further employment,(iii) as prescribed by the written policy of the employer of which theemployee had knowledge and whichconstituted a required condition of employment, (iv) as prescribed by atest which was required by law and which constituted arequired condition of employment for the individual's job, or(v) at a timecontemporaneous with the events establishing probable cause;
(C) the collecting and labeling of a chemical test samplewas performed by alicensed health care professional or any other individual certified pursuantto paragraph (b)(2)(F) orauthorized to collector label test samples by federalor state law, or a federal or state rule or regulation having the force oreffect of law, including law enforcementpersonnel;
(D) the chemical test was performed by a laboratory approved by theUnited Statesdepartment of health and human services or licensed by the department of healthand environment, except that a blood sample may be tested for alcohol contentby a laboratory commonly used for that purpose by state law enforcementagencies;
(E) the chemical test was confirmed by gas chromatography, gaschromatography-massspectroscopy or other comparably reliable analytical method, except that nosuch confirmation is required for a blood alcohol sample or a breath alcoholtest;
(F) the breath alcohol test was administered by an individual trained toperform breath tests, the breath testing instrument used was certified andoperated strictly according to description provided by the manufacturers andthe reliability of the instrument performance was assured by testing withalcohol standards; and
(G) the foundation evidence must establish, beyond a reasonable doubt,thatthe test results were from the sample taken from the individual.
(3) (A) For the purposes of this subsection (b), misconductshall include, but not be limited to repeated absence, includingincarceration, resulting in absence from work of three days or longer,excluding Saturdays, Sundays and legal holidays, andlateness, fromscheduled work if the facts show:
(i) The individual was absent without good cause;
(ii) the absence was in violation of the employer's writtenabsenteeismpolicy;
(iii) the employer gave or sent written notice to theindividual, at theindividual's last known address, that future absence may or will result indischarge; and
(iv) the employee had knowledge of the employer's writtenabsenteeism policy.
(B) For the purposes of this subsection (b), if an employeedisputes being absent without goodcause, the employeeshall present evidence that a majority of the employee's absences were for goodcause.If the employee alleges that the employee's repeated absences were theresultof health related issues, such evidence shall include documentation from alicensed and practicing health care provider as defined in subsection(a)(1).
(4) An individual shall not be disqualified under this subsectionif the individual is discharged under the following circumstances:
(A) The employer discharged the individual after learning the individual wasseeking other work or when the individual gave notice of future intent to quit;
(B) the individual was making a good-faith effort to do the assigned work butwas discharged due to: (i) Inefficiency, (ii) unsatisfactory performance due toinability, incapacity or lack of training or experience, (iii) isolatedinstances of ordinary negligence or inadvertence, (iv) good-faith errors injudgment or discretion, or (v) unsatisfactory work or conduct due tocircumstances beyond the individual's control; or
(C) the individual's refusal to perform work in excess of the contract ofhire.
(c) If the individual has failed, without good cause, toeither apply for suitable work when so directed by the employment office of thesecretary of labor, or to accept suitable workwhen offered to theindividual by the employment office, the secretary oflabor, or anemployer, such disqualification shall begin with the week in which such failureoccurred and shall continue until the individual becomes reemployed and has hadearnings from insured work of at least three times such individual's determinedweekly benefit amount. In determining whether or not any work is suitable foran individual, the secretary of labor, or aperson or personsdesignated by the secretary, shall consider the degree of risk involved tohealth, safety and morals, physical fitness and prior training, experience andprior earnings, length of unemployment and prospects for securing local work inthe individual's customary occupation or work for which the individual isreasonably fitted by training or experience, and the distance of the availablework from the individual's residence. Notwithstanding any other provisions ofthis act, an otherwise eligible individual shall not be disqualified forrefusing an offer of suitable employment, or failing to apply for suitableemployment when notified by an employment office, or for leaving theindividual's most recent work accepted during approved training, includingtraining approved under section 236(a)(1) of the trade act of 1974, if theacceptance of or applying for suitable employment or continuing such work wouldrequire the individual to terminate approved training and no work shall bedeemed suitable and benefits shall not be denied under this act to anyotherwise eligible individual for refusing to accept new work under any of thefollowing conditions: (1) If the position offered is vacant due directly to astrike, lockout or other labor dispute; (2) if the remuneration, hours or otherconditions of the work offered are substantially less favorable to theindividual than those prevailing for similar work in the locality; (3) if as acondition of being employed, the individual would be required to join or toresign from or refrain from joining any labor organization; (4) if theindividual left employment as a result of domestic violence, and the positionoffered does not reasonably accommodate the individual's physical,psychological, safety, and/or legal needs relating to suchdomesticviolence.
(d) For any week with respect to which the secretary oflabor, or a person or persons designated by thesecretary, finds thatthe individual's unemployment is due to a stoppage of work which exists becauseof a labor dispute or there would have been a work stoppage had normaloperations not been maintained with other personnel previously and currentlyemployed by the same employer at the factory, establishment or other premisesat which the individual is or was last employed, except that this subsection(d) shall not apply if it is shown to the satisfaction of thesecretary of labor, or a person or personsdesignated by thesecretary, that: (1) The individual is not participating in or financing ordirectly interested in the labor dispute which caused the stoppage of work; and(2) the individual does not belong to a grade or class of workers of which,immediately before the commencement of the stoppage, there were membersemployed at the premises at which the stoppage occurs any of whom areparticipating in or financing or directly interested in the dispute. If in anycase separate branches of work which are commonly conducted as separatebusinesses in separate premises are conducted in separate departments of thesame premises, each such department shall, for the purpose of this subsection(d) be deemed to be a separate factory, establishment orother premises. For the purposes of this subsection (d),failure or refusal to cross a picket line or refusal for any reason during thecontinuance of such labor dispute to accept the individual's available andcustomary work at the factory, establishment or other premises where theindividual is or was last employed shall be considered as participation andinterest in the labor dispute.
(e) For any week with respect to which or a part of whichthe individual has received or is seeking unemployment benefits under theunemployment compensation law of any other state or of the United States,except that if the appropriate agency of such other state or the United Statesfinally determines that the individual is not entitled to such unemploymentbenefits, this disqualification shall not apply.
(f) For any week with respect to which the individual isentitled to receive any unemployment allowance or compensation granted by theUnited States under an act of congress to ex-service men and women inrecognition of former service with the military or naval services of the UnitedStates.
(g) For the period of one year beginning with the first dayfollowing the last week of unemployment for which the individual receivedbenefits, or for one year from the date the act was committed, whichever is thelater, if the individual, or another in such individual's behalf with theknowledge of the individual, has knowingly made a false statement orrepresentation, or has knowingly failed to disclose a material fact to obtainor increase benefits under this act or any other unemployment compensation lawadministered by the secretary of labor.
(h) For any week with respect to which the individual isreceiving compensation for temporary total disability or permanent totaldisability under the workmen's compensation law of any state or under a similarlaw of the United States.
(i) For any week of unemployment on the basis of service inan instructional, research or principal administrative capacity for aneducational institution as defined in subsection (v) of K.S.A. 44-703,andamendments thereto, if such week begins during the period between twosuccessive academic years or terms or, when an agreement provides instead for asimilar period between two regular but not successive terms during such periodor during a period of paid sabbatical leave provided for in the individual'scontract, if the individual performs such services in the first of suchacademic years or terms and there is a contract or a reasonable assurance thatsuch individual will perform services in any such capacity for any educationalinstitution in the second of such academic years or terms.
(j) For any week of unemployment on the basis of service inany capacity other than service in an instructional, research, oradministrative capacity in an educational institution, as defined in subsection(v) of K.S.A. 44-703, and amendments thereto, if such week begins duringtheperiod between two successive academic years or terms if the individualperforms such services in the first of such academic years or terms and thereis a reasonable assurance that the individual will perform such services in thesecond of such academic years or terms, except that if benefits are denied tothe individual under this subsection (j) and the individualwas not offered an opportunity to perform such services for the educationalinstitution for the second of such academic years or terms, such individualshall be entitled to a retroactive payment of benefits for each week for whichthe individual filed a timely claim for benefits and for which benefits weredenied solely by reason of this subsection (j).
(k) For any week of unemployment on the basis of service inany capacity for an educational institution as defined in subsection (v) ofK.S.A. 44-703, and amendments thereto, if such week begins during anestablishedand customary vacation period or holiday recess, if the individual performsservices in the period immediately before such vacation period or holidayrecess and there is a reasonable assurance that such individual will performsuch services in the period immediately following such vacation period orholiday recess.
(l) For any week of unemployment on the basis of anyservices, substantially all of which consist of participating in sports orathletic events or training or preparing to so participate, if such week beginsduring the period between two successive sport seasons or similar period ifsuch individual performed services in the first of such seasons or similarperiods and there is a reasonable assurance that such individual will performsuch services in the later of such seasons or similar periods.
(m) For any week on the basis of services performed by analien unless such alien is an individual who was lawfully admitted forpermanent residence at the time such services were performed, was lawfullypresent for purposes of performing such services, or was permanently residingin the United States under color of law at the time such services wereperformed, including an alien who was lawfully present in the United States asa result of the application of the provisions of section 212(d)(5) of thefederal immigration and nationality act. Any data or information required ofindividuals applying for benefits to determine whether benefits are not payableto them because of their alien status shall be uniformly required from allapplicants for benefits. In the case of an individual whose application forbenefits would otherwise be approved, no determination that benefits to suchindividual are not payable because of such individual's alien status shall bemade except upon a preponderance of the evidence.
(n) For any week in which an individual is receiving agovernmental or other pension, retirement or retired pay, annuity or othersimilar periodic payment under a plan maintained by a base period employer andto which the entire contributions were provided by such employer, except that:(1) If the entire contributions to such plan were provided by the base periodemployer but such individual's weekly benefit amount exceeds such governmentalor other pension, retirement or retired pay, annuity or other similar periodicpayment attributable to such week, the weekly benefit amount payable to theindividual shall be reduced (but not below zero) by an amount equal to theamount of such pension, retirement or retired pay, annuity or other similarperiodic payment which is attributable to such week; or (2) if only a portionof contributions to such plan were provided by the base period employer, theweekly benefit amount payable to such individual for such week shall be reduced(but not below zero) by the prorated weekly amount of the pension, retirementor retired pay, annuity or other similar periodic payment after deduction ofthat portion of the pension, retirement or retired pay, annuity or othersimilar periodic payment that is directly attributable to the percentage of thecontributions made to the plan by such individual; or (3) if the entirecontributions to the plan were provided by such individual, or by theindividual and an employer (or any person or organization) who is not a baseperiod employer, no reduction in the weekly benefit amount payable to theindividual for such week shall be made under this subsection(n); or (4) whatever portion of contributions to such planwere providedby the base period employer, if the services performed for the employer by suchindividual during the base period, or remuneration received for the services,did not affect the individual's eligibility for, or increased the amount of,such pension, retirement or retired pay, annuity or other similar periodicpayment, no reduction in the weekly benefit amount payable to the individualfor such week shall be made under this subsection (n). Noreductionshall be made for paymentsmade under the social security act or railroad retirement act of 1974.
(o) For any week of unemployment on the basis of servicesperformed in any capacity and under any of the circumstances described insubsection (i), (j) or (k) which an individualperformed in an educational institution while in the employ of an educationalservice agency. For the purposes of this subsection (o), theterm "educational service agency" means a governmental agency or entity whichis established and operated exclusively for the purpose of providing suchservices to one or more educational institutions.
(p) For any week of unemployment on the basis of service asa school bus or other motor vehicle driver employed by a private contractor totransport pupils, students and school personnel to or from school-relatedfunctions or activities for an educational institution, as defined insubsection (v) of K.S.A. 44-703, and amendments thereto, if such weekbeginsduring the period between two successive academic years or during a similarperiod between two regular terms, whether or not successive, if the individualhas a contract or contracts, or a reasonable assurance thereof, to performservices in any such capacity with a private contractor for any educationalinstitution for both such academic years or both such terms. An individualshall not be disqualified for benefits as provided in this subsection(p) for any week of unemployment on the basis of service as abus or other motor vehicle driver employed by a private contractor to transportpersons to or from nonschool-related functions or activities.
(q) For any week of unemployment on the basis of servicesperformed by the individual in any capacity and under any of the circumstancesdescribed in subsection (i), (j), (k) or (o)which are provided to or on behalf of an educational institution, as defined insubsection (v) of K.S.A. 44-703, and amendments thereto, while theindividual isin the employ of an employer which is a governmental entity, Indian tribe orany employer described in section 501(c)(3) of the federal internal revenuecode of 1986 which is exempt from income under section 501(a) of the code.
(r) For any week in which an individual is registered atand attending an established school, training facility or other educationalinstitution, or is on vacation during or between two successive academic yearsor terms. An individual shall not be disqualified for benefits as provided inthis subsection (r) provided:
(1) The individual was engaged in full-time employment concurrent with theindividual's school attendance; or
(2) the individual is attending approved training as defined in subsection(s) of K.S.A. 44-703 and amendments thereto; or
(3) the individual is attending evening, weekend or limited day time classes,which would not affect availability for work, and is otherwise eligible undersubsection (c) of K.S.A. 44-705 and amendments thereto.
(s) For any week with respect to which an individual isreceiving or has received remuneration in the form of a back pay award orsettlement. The remuneration shall be allocated to the week or weeks in themanner as specified in the award or agreement, or in the absence of suchspecificity in the award or agreement, such remuneration shall be allocated tothe week or weeks in which such remuneration, in the judgment of the secretary,would have been paid.
(1) For any such weeks that an individual receives remuneration in theform of a back pay award or settlement, an overpayment will be established inthe amount of unemployment benefits paid and shall be collected from theclaimant.
(2) If an employer chooses to withhold from a back pay award or settlement,amounts paid to a claimant while they claimed unemployment benefits, suchemployer shall pay the department the amount withheld. With respect to suchamount, the secretary shall have available all of the collection remediesauthorized or provided in K.S.A. 44-717, and amendments thereto.
(t) If the individual has been discharged for failing apreemployment drugscreen required by the employer and if such discharge occurs not later thanseven days after the employer is notified of the results of such drugscreen.The disqualificationshall begin the day following the separation and shall continue until after theindividual becomes reemployed and has had earnings from insured work of atleast three times the individual's determined weekly benefit amount.
(u) If the individual was found not to have a disqualifying adjudicationorconviction under K.S.A. 39-970, and amendments thereto, or K.S.A. 65-5117, andamendments thereto, was hired and then was subsequently convicted of adisqualifying felony under K.S.A. 39-970, and amendments thereto, or K.S.A.65-5117, and amendments thereto, and discharged pursuant to K.S.A. 39-970, andamendments thereto, or K.S.A. 65-5117, and amendments thereto. Thedisqualification shall begin the day following the separation and shallcontinue until after the individual becomes reemployed and has had earningsfrom insured work of at least three times the individual's determined weeklybenefit amount.
44-706.Disqualification for benefits.An individual shall be disqualified for benefits:
(a) If the individual left work voluntarily without good cause attributableto the work or the employer, subject to the other provisions of this subsection(a).Failure to return to work after expiration of approved personal or medicalleave, or both, shall be considered a voluntary resignation.After a temporary job assignment, failure of an individual toaffirmatively request an additional assignment on the next succeeding workday,if required by the employment agreement, after completion of a given workassignment, shall constitute leaving work voluntarily. The disqualificationshall begin the day following the separation and shall continue until after theindividual has become reemployed and has had earnings from insured work of atleast three times the individual's weekly benefit amount. An individual shallnot be disqualified under this subsection (a) if:
(1) The individual was forced to leave work because of illness or injury uponthe advice of a licensed and practicing health care provider and, upon learningof the necessity for absence, immediately notified the employer thereof, or theemployer consented to the absence, and after recovery from the illness orinjury, when recovery was certified by a practicing health care provider, theindividual returned to the employer and offered to perform services and theindividual's regular work or comparable and suitable work was not available; asused in this paragraph (1) "health care provider" means any person licensed bythe proper licensing authority of any state to engage in the practice ofmedicine and surgery, osteopathy, chiropractic, dentistry, optometry, podiatryor 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 UnitedStates, but was rejected or delayed from entry;
(4) the individual left work because of the voluntary or involuntary transferof the individual's spouse from one job to another job, which is for the sameemployer or for a different employer, at a geographic location which makes itunreasonable for the individual to continue work at the individual's job;
(5) the individual left work because of hazardous working conditions; indetermining whether or not working conditions are hazardous for an individual,the degree of risk involved to the individual's health, safety and morals, theindividual's physical fitness and prior training and the working conditions ofworkers engaged in the same or similar work for the same and other employers inthe locality shall be considered; as used in this paragraph (5), "hazardousworking conditions" means working conditions that could result in a danger tothe physical or mental well-being of the individual; each determination as towhether hazardous working conditions exist shall include, but shall not belimited to, a consideration of (A) the safety measures used or the lackthereof, and (B) the condition of equipment or lack of proper equipment; nowork shall be considered hazardous if the working conditions surrounding theindividual's work are the same or substantially the same as the workingconditions generally prevailing among individuals performing the same orsimilar work for other employers engaged in the same or similar type ofactivity;
(6) the individual left work to enter training approved under section236(a)(1) of the federal trade act of 1974, provided the work left is not of asubstantially equal or higher skill level than the individual's past adverselyaffected 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 averageweekly wage as determined for the purposes of the federal trade act of 1974;
(7) the individual left work because of unwelcome harassment of theindividual by the employer or another employee of which the employing unit hadknowledge;
(8) the individual left work to accept better work; each determination as towhether or not the work accepted is better work shall include, but shall not belimited to, consideration of (A) the rate of pay, the hours of work and theprobable permanency of the work left as compared to the work accepted, (B) thecost to the individual of getting to the work left in comparison to the cost ofgetting to the work accepted, and (C) the distance from the individual's placeof residence to the work accepted in comparison to the distance from theindividual's residence to the work left;
(9) the individual left work as a result of being instructed or requested bythe employer, a supervisor or a fellow employee to perform a service or commitan act in the scope of official job duties which is in violation of anordinance or statute;
(10) the individual left work because of a violation of the work agreement bythe employing unit and, before the individual left, the individual hadexhausted all remedies provided in such agreement for the settlement ofdisputes before terminating;
(11) after making reasonable efforts to preserve the work, the individualleft work due to a personal emergency of such nature and compelling urgencythat it would be contrary to good conscience to impose a disqualification;or
(12) (A) the individual left work due to circumstances resultingfromdomesticviolence, including:
(i) The individual's reasonable fear of future domesticviolence at or enroute to or from the individual's place of employment; or
(ii) the individual's need to relocate to anothergeographicarea in order toavoid future domestic violence; or
(iii) the individual's need to address the physical,psychological and legalimpacts of domestic violence; or
(iv) the individual's need to leave employment as acondition of receivingservices or shelter from an agency which provides support services or shelterto victims of domestic violence; or
(v) the individual's reasonable belief that termination ofemployment isnecessary to avoid other situations which may cause domestic violence and toprovide for the future safety of the individual or the individual's family.
(B) An individual may prove the existence of domesticviolence by providingone of the following:
(i) A restraining order or other documentation of equitablerelief by a courtof competent jurisdiction; or
(ii) a police record documenting the abuse; or
(iii) documentation that the abuser has been convicted ofone or more of theoffenses enumerated in articles 34 and 35 of chapter 21 of the Kansas StatutesAnnotated, and amendments thereto, where the victim was a family or householdmember; or
(iv) medical documentation of the abuse; or
(v) a statement provided by a counselor, social worker,health care provider,clergy, shelter worker, legal advocate, domestic violence or sexual assaultadvocate or other professional who has assisted the individual in dealing withthe effects of abuse on the individual or the individual's family; or
(vi) a sworn statement from the individual attesting to theabuse.
(C) No evidence of domestic violence experienced by anindividual, includingthe individual's statement and corroborating evidence, shall be disclosed bythe department of labor unless consent fordisclosure is given by theindividual.
(b) If the individual has been discharged for misconductconnected with the individual's work. The disqualification shall begin the dayfollowing the separation and shall continue until after the individual becomesreemployed and has had earnings from insured work of at least three times theindividual's determined weekly benefit amount, except that if an individual isdischarged for gross misconduct connected with the individual's work, suchindividual shall be disqualified for benefits until such individual againbecomes employed and has had earnings from insured work of at least eight timessuch individual's determined weekly benefit amount. In addition, all wagecredits attributable to the employment from which the individual was dischargedfor gross misconduct connected with the individual's work shall be canceled. Nosuch cancellation of wage credits shall affect prior payments made as a resultof a prior separation.
(1) For the purposes of this subsection (b), "misconduct"is defined as a violation of a duty or obligation reasonably owed the employeras a condition of employment. The term "gross misconduct" as used in thissubsection (b) shall be construed to mean conduct evincingextreme, willful or wanton misconduct as defined by this subsection(b).Failure of the employee to notify the employer of an absence shall beconsidered prima facie evidence of a violation of a duty or obligationreasonably owed the employer as a condition of employment.
(2) For the purposes of this subsection (b), the use of orimpairment caused by alcoholic liquor, acereal malt beverage or anonprescribed controlled substance by an individual while working shall beconclusive evidence of misconduct and the possession ofalcoholic liquor,a cereal malt beverage or a nonprescribed controlled substance by an individualwhile working shall be prima facie evidence of conduct which is a violation ofa duty or obligation reasonably owed to the employer as a condition ofemployment.Alcoholic liquor shall be defined as provided in K.S.A. 41-102, andamendments thereto. Cereal malt beverage shall be defined as provided inK.S.A. 41-2701, and amendments thereto. Controlled substance shall bedefined as provided in K.S.A. 2009 Supp. 21-36a01, and amendmentsthereto. As used in thissubsection (b)(2), "required by law" means required by a federal or state law,a federal or state rule or regulation having the force and effect of law, acounty resolution or municipal ordinance, or a policy relating to publicsafety adopted in open meeting by the governing body of any special district orother local governmental entity. Chemical testshall include, but is not limited to, tests of urine, blood or saliva. Apositive chemical test shall mean a chemical result showing a concentration ator above the levels listed in K.S.A. 44-501, and amendments thereto, for thedrugs or abuse listed therein. A positive breath test shall mean a test resultshowing an alcohol concentration of .04 or greater. Alcohol concentration meansthe number of grams of alcohol per 210 liters of breath. Anindividual's refusal to submit to a chemical test or breath alcohol testshall be conclusiveevidence of misconduct if the testmeets thestandards of the drug free workplace act, 41 U.S.C. 701 et seq.;the test wasadministered as part of an employee assistance program or other drug or alcoholtreatment program in which the employee was participating voluntarily or as acondition of further employment; the test was otherwise requiredby law and thetest constituted a required condition of employment for the individual'sjob; the test was requested pursuant to a written policy of theemployer of which the employee had knowledge and was a required condition ofemployment;or there was probable cause to believe that the individual used,possessed orwas impaired by alcoholic liquor, a cerealmalt beverage or a controlledsubstance while working. A positive breath alcohol testor a positive chemical test shall beconclusive evidence to prove misconductif thefollowing conditions are met:
(A) Either (i) the test was required by law and wasadministeredpursuant to the drug free workplace act, 41 U.S.C. 701 et seq., (ii) the testwas administered as part of an employee assistance program or other drug oralcohol treatment program in which the employee was participating voluntarilyor as a condition of further employment, (iii) the test was requestedpursuant to a written policy of the employer of which the employee hadknowledge and was a required condition ofemployment, (iv) the test was required by law andthe test constituted a required condition of employment for the individual'sjob, or (v) there was probable cause to believe that theindividual used, hadpossession of, or was impaired by alcoholicliquor, the cereal maltbeverage or the controlled substance while working;
(B) the test sample was collected either (i) as prescribed by the drug freeworkplace act, 41 U.S.C. 701 et seq., (ii) as prescribed by an employeeassistance program or other drug or alcohol treatment program in which theemployee was participating voluntarily or as a condition of further employment,(iii) as prescribed by the written policy of the employer of which theemployee had knowledge and whichconstituted a required condition of employment, (iv) as prescribed by atest which was required by law and which constituted arequired condition of employment for the individual's job, or(v) at a timecontemporaneous with the events establishing probable cause;
(C) the collecting and labeling of a chemical test samplewas performed by alicensed health care professional or any other individual certified pursuantto paragraph (b)(2)(F) orauthorized to collector label test samples by federalor state law, or a federal or state rule or regulation having the force oreffect of law, including law enforcementpersonnel;
(D) the chemical test was performed by a laboratory approved by theUnited Statesdepartment of health and human services or licensed by the department of healthand environment, except that a blood sample may be tested for alcohol contentby a laboratory commonly used for that purpose by state law enforcementagencies;
(E) the chemical test was confirmed by gas chromatography, gaschromatography-massspectroscopy or other comparably reliable analytical method, except that nosuch confirmation is required for a blood alcohol sample or a breath alcoholtest;
(F) the breath alcohol test was administered by an individual trained toperform breath tests, the breath testing instrument used was certified andoperated strictly according to description provided by the manufacturers andthe reliability of the instrument performance was assured by testing withalcohol standards; and
(G) the foundation evidence must establish, beyond a reasonable doubt,thatthe test results were from the sample taken from the individual.
(3) (A) For the purposes of this subsection (b), misconductshall include, but not be limited to repeated absence, includingincarceration, resulting in absence from work of three days or longer,excluding Saturdays, Sundays and legal holidays, andlateness, fromscheduled work if the facts show:
(i) The individual was absent without good cause;
(ii) the absence was in violation of the employer's writtenabsenteeismpolicy;
(iii) the employer gave or sent written notice to theindividual, at theindividual's last known address, that future absence may or will result indischarge; and
(iv) the employee had knowledge of the employer's writtenabsenteeism policy.
(B) For the purposes of this subsection (b), if an employeedisputes being absent without goodcause, the employeeshall present evidence that a majority of the employee's absences were for goodcause.If the employee alleges that the employee's repeated absences were theresultof health related issues, such evidence shall include documentation from alicensed and practicing health care provider as defined in subsection(a)(1).
(4) An individual shall not be disqualified under this subsectionif the individual is discharged under the following circumstances:
(A) The employer discharged the individual after learning the individual wasseeking other work or when the individual gave notice of future intent to quit;
(B) the individual was making a good-faith effort to do the assigned work butwas discharged due to: (i) Inefficiency, (ii) unsatisfactory performance due toinability, incapacity or lack of training or experience, (iii) isolatedinstances of ordinary negligence or inadvertence, (iv) good-faith errors injudgment or discretion, or (v) unsatisfactory work or conduct due tocircumstances beyond the individual's control; or
(C) the individual's refusal to perform work in excess of the contract ofhire.
(c) If the individual has failed, without good cause, toeither apply for suitable work when so directed by the employment office of thesecretary of labor, or to accept suitable workwhen offered to theindividual by the employment office, the secretary oflabor, or anemployer, such disqualification shall begin with the week in which such failureoccurred and shall continue until the individual becomes reemployed and has hadearnings from insured work of at least three times such individual's determinedweekly benefit amount. In determining whether or not any work is suitable foran individual, the secretary of labor, or aperson or personsdesignated by the secretary, shall consider the degree of risk involved tohealth, safety and morals, physical fitness and prior training, experience andprior earnings, length of unemployment and prospects for securing local work inthe individual's customary occupation or work for which the individual isreasonably fitted by training or experience, and the distance of the availablework from the individual's residence. Notwithstanding any other provisions ofthis act, an otherwise eligible individual shall not be disqualified forrefusing an offer of suitable employment, or failing to apply for suitableemployment when notified by an employment office, or for leaving theindividual's most recent work accepted during approved training, includingtraining approved under section 236(a)(1) of the trade act of 1974, if theacceptance of or applying for suitable employment or continuing such work wouldrequire the individual to terminate approved training and no work shall bedeemed suitable and benefits shall not be denied under this act to anyotherwise eligible individual for refusing to accept new work under any of thefollowing conditions: (1) If the position offered is vacant due directly to astrike, lockout or other labor dispute; (2) if the remuneration, hours or otherconditions of the work offered are substantially less favorable to theindividual than those prevailing for similar work in the locality; (3) if as acondition of being employed, the individual would be required to join or toresign from or refrain from joining any labor organization; (4) if theindividual left employment as a result of domestic violence, and the positionoffered does not reasonably accommodate the individual's physical,psychological, safety, and/or legal needs relating to suchdomesticviolence.
(d) For any week with respect to which the secretary oflabor, or a person or persons designated by thesecretary, finds thatthe individual's unemployment is due to a stoppage of work which exists becauseof a labor dispute or there would have been a work stoppage had normaloperations not been maintained with other personnel previously and currentlyemployed by the same employer at the factory, establishment or other premisesat which the individual is or was last employed, except that this subsection(d) shall not apply if it is shown to the satisfaction of thesecretary of labor, or a person or personsdesignated by thesecretary, that: (1) The individual is not participating in or financing ordirectly interested in the labor dispute which caused the stoppage of work; and(2) the individual does not belong to a grade or class of workers of which,immediately before the commencement of the stoppage, there were membersemployed at the premises at which the stoppage occurs any of whom areparticipating in or financing or directly interested in the dispute. If in anycase separate branches of work which are commonly conducted as separatebusinesses in separate premises are conducted in separate departments of thesame premises, each such department shall, for the purpose of this subsection(d) be deemed to be a separate factory, establishment orother premises. For the purposes of this subsection (d),failure or refusal to cross a picket line or refusal for any reason during thecontinuance of such labor dispute to accept the individual's available andcustomary work at the factory, establishment or other premises where theindividual is or was last employed shall be considered as participation andinterest in the labor dispute.
(e) For any week with respect to which or a part of whichthe individual has received or is seeking unemployment benefits under theunemployment compensation law of any other state or of the United States,except that if the appropriate agency of such other state or the United Statesfinally determines that the individual is not entitled to such unemploymentbenefits, this disqualification shall not apply.
(f) For any week with respect to which the individual isentitled to receive any unemployment allowance or compensation granted by theUnited States under an act of congress to ex-service men and women inrecognition of former service with the military or naval services of the UnitedStates.
(g) For the period of one year beginning with the first dayfollowing the last week of unemployment for which the individual receivedbenefits, or for one year from the date the act was committed, whichever is thelater, if the individual, or another in such individual's behalf with theknowledge of the individual, has knowingly made a false statement orrepresentation, or has knowingly failed to disclose a material fact to obtainor increase benefits under this act or any other unemployment compensation lawadministered by the secretary of labor.
(h) For any week with respect to which the individual isreceiving compensation for temporary total disability or permanent totaldisability under the workmen's compensation law of any state or under a similarlaw of the United States.
(i) For any week of unemployment on the basis of service inan instructional, research or principal administrative capacity for aneducational institution as defined in subsection (v) of K.S.A. 44-703,andamendments thereto, if such week begins during the period between twosuccessive academic years or terms or, when an agreement provides instead for asimilar period between two regular but not successive terms during such periodor during a period of paid sabbatical leave provided for in the individual'scontract, if the individual performs such services in the first of suchacademic years or terms and there is a contract or a reasonable assurance thatsuch individual will perform services in any such capacity for any educationalinstitution in the second of such academic years or terms.
(j) For any week of unemployment on the basis of service inany capacity other than service in an instructional, research, oradministrative capacity in an educational institution, as defined in subsection(v) of K.S.A. 44-703, and amendments thereto, if such week begins duringtheperiod between two successive academic years or terms if the individualperforms such services in the first of such academic years or terms and thereis a reasonable assurance that the individual will perform such services in thesecond of such academic years or terms, except that if benefits are denied tothe individual under this subsection (j) and the individualwas not offered an opportunity to perform such services for the educationalinstitution for the second of such academic years or terms, such individualshall be entitled to a retroactive payment of benefits for each week for whichthe individual filed a timely claim for benefits and for which benefits weredenied solely by reason of this subsection (j).
(k) For any week of unemployment on the basis of service inany capacity for an educational institution as defined in subsection (v) ofK.S.A. 44-703, and amendments thereto, if such week begins during anestablishedand customary vacation period or holiday recess, if the individual performsservices in the period immediately before such vacation period or holidayrecess and there is a reasonable assurance that such individual will performsuch services in the period immediately following such vacation period orholiday recess.
(l) For any week of unemployment on the basis of anyservices, substantially all of which consist of participating in sports orathletic events or training or preparing to so participate, if such week beginsduring the period between two successive sport seasons or similar period ifsuch individual performed services in the first of such seasons or similarperiods and there is a reasonable assurance that such individual will performsuch services in the later of such seasons or similar periods.
(m) For any week on the basis of services performed by analien unless such alien is an individual who was lawfully admitted forpermanent residence at the time such services were performed, was lawfullypresent for purposes of performing such services, or was permanently residingin the United States under color of law at the time such services wereperformed, including an alien who was lawfully present in the United States asa result of the application of the provisions of section 212(d)(5) of thefederal immigration and nationality act. Any data or information required ofindividuals applying for benefits to determine whether benefits are not payableto them because of their alien status shall be uniformly required from allapplicants for benefits. In the case of an individual whose application forbenefits would otherwise be approved, no determination that benefits to suchindividual are not payable because of such individual's alien status shall bemade except upon a preponderance of the evidence.
(n) For any week in which an individual is receiving agovernmental or other pension, retirement or retired pay, annuity or othersimilar periodic payment under a plan maintained by a base period employer andto which the entire contributions were provided by such employer, except that:(1) If the entire contributions to such plan were provided by the base periodemployer but such individual's weekly benefit amount exceeds such governmentalor other pension, retirement or retired pay, annuity or other similar periodicpayment attributable to such week, the weekly benefit amount payable to theindividual shall be reduced (but not below zero) by an amount equal to theamount of such pension, retirement or retired pay, annuity or other similarperiodic payment which is attributable to such week; or (2) if only a portionof contributions to such plan were provided by the base period employer, theweekly benefit amount payable to such individual for such week shall be reduced(but not below zero) by the prorated weekly amount of the pension, retirementor retired pay, annuity or other similar periodic payment after deduction ofthat portion of the pension, retirement or retired pay, annuity or othersimilar periodic payment that is directly attributable to the percentage of thecontributions made to the plan by such individual; or (3) if the entirecontributions to the plan were provided by such individual, or by theindividual and an employer (or any person or organization) who is not a baseperiod employer, no reduction in the weekly benefit amount payable to theindividual for such week shall be made under this subsection(n); or (4) whatever portion of contributions to such planwere providedby the base period employer, if the services performed for the employer by suchindividual during the base period, or remuneration received for the services,did not affect the individual's eligibility for, or increased the amount of,such pension, retirement or retired pay, annuity or other similar periodicpayment, no reduction in the weekly benefit amount payable to the individualfor such week shall be made under this subsection (n). Noreductionshall be made for paymentsmade under the social security act or railroad retirement act of 1974.
(o) For any week of unemployment on the basis of servicesperformed in any capacity and under any of the circumstances described insubsection (i), (j) or (k) which an individualperformed in an educational institution while in the employ of an educationalservice agency. For the purposes of this subsection (o), theterm "educational service agency" means a governmental agency or entity whichis established and operated exclusively for the purpose of providing suchservices to one or more educational institutions.
(p) For any week of unemployment on the basis of service asa school bus or other motor vehicle driver employed by a private contractor totransport pupils, students and school personnel to or from school-relatedfunctions or activities for an educational institution, as defined insubsection (v) of K.S.A. 44-703, and amendments thereto, if such weekbeginsduring the period between two successive academic years or during a similarperiod between two regular terms, whether or not successive, if the individualhas a contract or contracts, or a reasonable assurance thereof, to performservices in any such capacity with a private contractor for any educationalinstitution for both such academic years or both such terms. An individualshall not be disqualified for benefits as provided in this subsection(p) for any week of unemployment on the basis of service as abus or other motor vehicle driver employed by a private contractor to transportpersons to or from nonschool-related functions or activities.
(q) For any week of unemployment on the basis of servicesperformed by the individual in any capacity and under any of the circumstancesdescribed in subsection (i), (j), (k) or (o)which are provided to or on behalf of an educational institution, as defined insubsection (v) of K.S.A. 44-703, and amendments thereto, while theindividual isin the employ of an employer which is a governmental entity, Indian tribe orany employer described in section 501(c)(3) of the federal internal revenuecode of 1986 which is exempt from income under section 501(a) of the code.
(r) For any week in which an individual is registered atand attending an established school, training facility or other educationalinstitution, or is on vacation during or between two successive academic yearsor terms. An individual shall not be disqualified for benefits as provided inthis subsection (r) provided:
(1) The individual was engaged in full-time employment concurrent with theindividual's school attendance; or
(2) the individual is attending approved training as defined in subsection(s) of K.S.A. 44-703 and amendments thereto; or
(3) the individual is attending evening, weekend or limited day time classes,which would not affect availability for work, and is otherwise eligible undersubsection (c) of K.S.A. 44-705 and amendments thereto.
(s) For any week with respect to which an individual isreceiving or has received remuneration in the form of a back pay award orsettlement. The remuneration shall be allocated to the week or weeks in themanner as specified in the award or agreement, or in the absence of suchspecificity in the award or agreement, such remuneration shall be allocated tothe week or weeks in which such remuneration, in the judgment of the secretary,would have been paid.
(1) For any such weeks that an individual receives remuneration in theform of a back pay award or settlement, an overpayment will be established inthe amount of unemployment benefits paid and shall be collected from theclaimant.
(2) If an employer chooses to withhold from a back pay award or settlement,amounts paid to a claimant while they claimed unemployment benefits, suchemployer shall pay the department the amount withheld. With respect to suchamount, the secretary shall have available all of the collection remediesauthorized or provided in K.S.A. 44-717, and amendments thereto.
(t) If the individual has been discharged for failing apreemployment drugscreen required by the employer and if such discharge occurs not later thanseven days after the employer is notified of the results of such drugscreen.The disqualificationshall begin the day following the separation and shall continue until after theindividual becomes reemployed and has had earnings from insured work of atleast three times the individual's determined weekly benefit amount.
(u) If the individual was found not to have a disqualifying adjudicationorconviction under K.S.A. 39-970, and amendments thereto, or K.S.A. 65-5117, andamendments thereto, was hired and then was subsequently convicted of adisqualifying felony under K.S.A. 39-970, and amendments thereto, or K.S.A.65-5117, and amendments thereto, and discharged pursuant to K.S.A. 39-970, andamendments thereto, or K.S.A. 65-5117, and amendments thereto. Thedisqualification shall begin the day following the separation and shallcontinue until after the individual becomes reemployed and has had earningsfrom insured work of at least three times the individual's determined weeklybenefit amount.
