Can you be denied unemployment compensation for refusing to work with AIDS patients?

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A certified nursing assistant who refused to care for geriatric AIDS patients was denied unemployment compensation because the nursing care center claimed the nursing assistant was fired for “willful misconduct.”

An employer may fire an employee for willful misconduct if the employee willfully disregards the employer’s interests, deliberately violates a rule, disregards a standard of behavior that the employer is entitled to expect, or is grossly negligent. In deciding whether an employee’s conduct amounts to willful misconduct, the courts will examine the reasonableness of the employer’s rules or requests and the reasonableness of the employee’s refusal to follow the rules or requests. Nevertheless, an employee must show “extraordinary circumstances” to justify his or her refusal to follow a rule or direct order.

In this case, the court found that there were no extraordinary circumstances that supported the assistant’s refusal to treat patients suffering from AIDS. The court reviewed in detail the written training precautions provided by the employer. The precautions required that health care providers treating all patients use rubber gloves to protect against contact with body fluids. Additional procedures involving the use of aprons, gowns, and masks were required by the employer for more invasive or involved treatment. The nursing assistant admitted that he did not follow the recommended procedures in treating the general population of the home, despite the fact that the training directives cautioned employees that it was not always clear whether or not a patient might be carrying the AIDS virus.

The court concluded that the nursing assistant harbored unnecessary fears and misconceptions concerning AIDS patients. Finding that his reasons for refusing to have any contact with AIDS patients were unreasonable, the court upheld the employer’s decision and denied the assistant any unemployment compensation.

Employees who are required to engage in work they feel is too risky must support their concerns with clear facts and focused testimony. The burden to justify their conduct as compelled by “extraordinary circumstances” is a very difficult one to meet. An employer who encounters resistance from employees to rules or requests should be sure to document the reasonableness of his or her position.