Weather Related Unemployment Claims

May 5, 2011

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If an employee misses work because of the weather, is he eligible for unemployment insurance benefits?

A: The issue is whether the employee was called on by his or her employer to report for work that was “actually available” within a given week and, if so, whether the employee was unable to perform or unavailable for some or all of the work, within the meaning of section 108.04(1)(a) of the Wisconsin Statutes. As a general rule, work is not actually available when the employer is unable to provide conditions in which an employee can work with reasonable comfort. The courts and the Labor and Industry Review Commission have traditionally found that work outdoors in extremely cold weather is not “actually available.” For instance, the Commission determined in one case that temperatures and wind chill factors of zero degrees and below were considered so severe that they place unreasonable risk of injury or illness upon employees working outside on rooftops, and prevented available work assignments.

If an employer closes the business because of weather conditions, then work was not “actually” available and the employee may be eligible for unemployment insurance benefits. If the employer was open for work, but the employee refused to work because of weather conditions, then there is a factual issue as to whether the employer was able to offer work in conditions that are reasonably safe and/or comfortable.

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For more information about "Weather Related Unemployment Claims," contact Robert C. Procter at rprocter@axley.com or 608.283.6762.