* Kyle J. Smith v. Employment Security Dep't

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COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON
Kyle Smith,
Appellant,
v.
State of Washington
Employment Security Department,
Respondent.
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No. 38895-6-III
ORDER GRANTING MOTION
FOR RECONSIDERATION
AND AMENDING OPINION
THE COURT has considered Respondent’s motion for reconsideration of our
Smith v. State of Washington Employment Security Department No. 38895-6-III opinion.
IT IS ORDERED, the motion for reconsideration is granted and the opinion shall
be amended as follows: The paragraph on page 1022 that reads:
Kyle Smith principally challenges ESD commissioner’s finding of
fact 12. Smith claims that the finding reads that he could not identify
suitable work that he could perform from home. We conclude that this
finding accurately reflects the administrative hearing evidence. Smith
could not identify any telework available because Boeing did not offer any
telework for Smith. Nevertheless, we conclude that the ESD commissioner
erred when relying on the finding. Under the governor’s proclamation,
Smith did not need to be actively seeking substitute work, regardless of
whether the work was in person or telework.
shall be amended to read:
FILED
MAY 4, 2023
In the Office of the Clerk of Court
WA State Court of Appeals Division III
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No. 38895-6-III
Page 2
Kyle Smith principally challenges ESD commissioner’s finding of
fact 12. Smith claims that the finding reads that he could not identify
suitable work that he could perform from home. We conclude that this
finding accurately reflects the administrative hearing evidence. Smith
could not identify any telework available because Boeing did not offer any
telework for Smith. Nevertheless, we conclude that the ESD commissioner
erred when relying on the finding to determine Smith was not available for
work. In doing so, the ESD commissioner necessarily imposed the
requirement of actively seeking work on Smith by requiring that he identify
suitable work he could have performed. Under the governor’s
proclamation, Smith did not need to be actively seeking substitute work,
regardless of whether the work was in person or telework.
PANEL: Judges Fearing, Siddoway, Pennell
FOR THE COURT:
___________________________________
GEORGE B. FEARING, Chief Judge
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
KYLE J. SMITH,
Appellant,
v.
STATE OF WASHINGTON,
EMPLOYMENT SECURITY
DEPARTMENT,
Respondent.
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No. 38895-6-III
PUBLISHED OPINION
FEARING, J. — This appeal asks whether an employee, who takes a leave of
absence because of COVID-19 from work requiring a physical presence, may receive
unemployment benefits. Appellant Kyle Smith temporarily left work, during the early
months of the pandemic, because of an immunocompromised roommate. We hold that,
despite the employee’s quarantine, Smith remained available for work because he could
have performed telework. We reverse the Employment Security Department’s denial of
unemployment benefits.
FACTS
Kyle Smith worked at Boeing as a crane operator, a position that required working
on-site. Smith shared housing with an immunocompromised roommate.
FILED
MARCH 23, 2023
In the Office of the Clerk of Court
WA State Court of Appeals Division III
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No. 38895-6-III,
Smith v. Employment Security
2
At the beginning of the COVID-19 pandemic in 2020, Kyle Smith and his
roommate agreed that the roommate would locate new housing because of the
roommate’s susceptibility to severe complications if he contracted the COVID virus. In
turn, Smith agreed to take a voluntary leave of absence from work until the roommate
gained new housing.
Kyle Smith submitted an unpaid leave of absence request, which Boeing
approved. Smith took formal leave on May 11, 2020. Boeing did not offer Smith
alternative remote work while he quarantined. Smith returned to work on June 10, 2020,
soon after his roommate vacated the shared housing.
During his leave of absence, Smith applied for unemployment benefits with the
State Employment Security Department (ESD). ESD found that he was unemployed, but
available for work during his leave of absence. ESD ordered approval of benefits from
May 10 to June 13.
PROCEDURE
Boeing filed a challenge to ESD’s award of unemployment benefits. An ESD
administrative law judge (ALJ) conducted a hearing on the challenge.
During the administrative hearing, the ALJ questioned Kyle Smith:
THE COURT: Okay. All right. So while you were on leave and
filing for unemployment, um, was there any type of other job that you
could do?
MR. SMITH: Uh, there was not, Your Honor.
THE COURT: Okay. Um, did you refuse any job offers?
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No. 38895-6-III,
Smith v. Employment Security
3
MR. SMITH: I did not.
THE COURT: Were you willing to work all hours and any shifts for
any jobs that you were capable of doing?
MR. SMITH: Yes, I was.
THE COURT: Were you in school at all during the weeks you filed
for benefits?
MR. SMITH: I was not.
THE COURT: Did you have adequate transportation to and from a
job if you were going to be offered one?
MR. SMITH: Yes, I did, Your Honor.
THE COURT: Great. And did you have any medical issues yourself
that would, um, preclude you from working full time?
MR. SMITH: Uh, no, Your Honor.
Administrative Record (AR) at 20.
The ALJ reversed ESD’s award of unemployment benefits to Kyle Smith. The
ALJ entered the following findings of fact:
6. Claimant’s job as a crane operator had to be done in person. No
telework was available.
. . . .
12. Claimant testified that there was no suitable work that he could
do while quarantining, as his job type required him to work in person.
AR at 68. The ALJ entered a conclusion of law that reads:
8. The undersigned concludes that Claimant was not available for
work during weeks he applied for benefits as he could not identify any
suitable work that he was available for, as he could not do his job as a crane
operator from home while quarantining.
AR at 69.
Kyle Smith petitioned the ESD commissioner for review of the ALJ’s decision.
The commissioner adopted the ALJ’s findings of fact, concluded that Smith was
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No. 38895-6-III,
Smith v. Employment Security
4
unavailable for telework, and denied him unemployment benefits.
Kyle Smith appealed the ESD commissioner’s decision to the Thurston County
Superior Court. The superior court transferred Smith’s appeal to the Court of Appeals for
direct review under RCW 34.05.518.
LAW AND ANALYSIS
Kyle Smith argues that the ESD commissioner acted beyond its scope of authority
by placing eligibility requirements on him beyond those demanded by law when the
commissioner denied him unemployment benefits. We restate Smith’s challenge as
simply being whether the commissioner erred rather than lacked authority.
Kyle Smith’s right to receive unemployment benefits turns on a reading of several
statutes. Under RCW 50.20.010(1)(c):
[a]n unemployed individual shall be eligible to receive waiting
period credits or benefits with respect to any week in his or her eligibility
period only if the commissioner finds that . . . [t]he individual is able to
work, and is available for work in any trade, occupation, profession, or
business for which the individual is reasonably fitted.
(Emphasis added.) Under RCW 50.20.010(1)(c)(i), an individual is considered “available
for work” if he or she is
ready, able, and willing, immediately to accept any suitable work
which may be offered to him or her and must be actively seeking work
pursuant to customary trade practices and through other methods when so
directed by the commissioner or the commissioner’s agents.
(Emphasis added.) RCW 50.20.100(1) defines “suitable work factors” as:
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No. 38895-6-III,
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5
is employment in an occupation in keeping with the individual’s
prior work experience, education, or training and if the individual has no
prior work experience, special education, or training for employment
available in the general area, then employment which the individual would
have the physical and mental ability to perform.
Despite highlighting portions of two of the statutes, we observe that, because of
the pandemic, the Washington State governor suspended the provisions. Governor Jay
Inslee, on March 25, 2020, suspended RCW 50.20.010(1)(c)’s requirement of actively
seeking employment. Governor’s Proclamation 20-30 (2020) read in part:
WHEREAS, requiring unemployed Washington workers to search
for work in order to maintain unemployment benefit eligibility is
counterproductive to the state’s efforts to slow the spread of COVID-19,
and can be futile given the economic slowdown and reduction in business
activity; and
WHEREAS, the worldwide COVID-19 pandemic and its
progression in Washington State continues to threaten the life and health of
our people as well as the economy of Washington State, and remains a
public disaster affecting life, health, property or the public peace; and
NOW, THEREFORE, I, Jay Inslee, Governor of the state of
Washington, as a result of the above-noted situation, and under Chapters
38.08, 38.52 and 43.06 RCW, do hereby proclaim that a State of
Emergency continues to exist [and] . . . that Proclamation 20-05 is amended
to waive or suspend specified statutes that prevent, hinder or delay
necessary action by the Washington State Employment Security
Department in providing unemployment compensation to the significant
number people in Washington State suffering from layoffs resulting from
the economic downturn caused by the COVID-19 pandemic. . . .
FURTHERMORE, based on the above situation and under the
provisions of RCW 43.06.220(2)(g), I also find that strict compliance with
the following statutory obligations or limitations will prevent, hinder or
delay necessary action by the Washington State Employment Security
Department in providing unemployment compensation to the significant
number of people in Washington State suffering from layoffs resulting from
the economic downturn caused by the COVID-19 pandemic, and that, for
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No. 38895-6-III,
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claims filed on or after March 8, 2020, the following specific statutory
provisions are hereby waived and suspended until midnight on April 24,
2020:
1. RCW 50.20.010(1)(c)(i) – the following language only: “and must
be actively seeking work pursuant to customary trade practices and through
other methods when so directed by the commissioner or the commissioner’s
agents;” and
2. RCW 50.20.240 – in its entirety.
Proclamation by Governor Jay Inslee, No. 20-30 (Wash. Mar. 25, 2020),
https://www.governor.wa.gov/sites/default/files/proclamations/20-30%20COVID-
19%20-%20ESD-Job%20Requirements%20%28tmp%29.pdf. On July 4, 2021,
Governor Inslee terminated the suspension of the requirement of actively seeking work.
Proclamation by Governor Jay Inslee, No. 20-30.12 (Wash. June 21, 2021),
https://www.governor.wa.gov/sites/default/files/proclamations/proc_20-30.12.pdf.
Kyle Smith principally challenges ESD commissioner’s finding of fact 12. Smith
claims that the finding reads that he could not identify suitable work that he could
perform from home. We conclude that this finding accurately reflects the administrative
hearing evidence. Smith could not identify any telework available because Boeing did
not offer any telework for Smith. Nevertheless, we conclude that the ESD commissioner
erred when relying on the finding. Under the governor’s proclamation, Smith did not
need to be actively seeking substitute work, regardless of whether the work was in person
or telework.
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No. 38895-6-III,
Smith v. Employment Security
7
We grant relief from an agency order if it is based on an erroneous interpretation
or application of the law. RCW 34.05.570(3)(d); Hamel v. Employment Security
Department, 93 Wn. App. 140, 144, 966 P.2d 1282 (1998). The ESD commissioner
failed to properly apply Governor’s Proclamation 20-30.
RCW 50.20.010(4) confirms the state government’s intent to provide
unemployment benefits to workers caught in the COVID-19 pandemic. The Washington
Legislature passed RCW 50.20.010(4) into law on January 27, 2021, and the bill became
effective on February 8, 2021. This statutory subsection declares in relevant part:
During the weeks of a public health emergency, an unemployed
individual may also meet the requirements of subsection (1)(c) of this
section if:
(a) The unemployed individual is able to perform, available to
perform, and actively seeking suitable work which can be performed for an
employer from the individual's home; and
(b) The unemployed individual or another individual residing with
the unemployed individual is at higher risk of severe illness or death from
the disease that is the subject of the public health emergency because the
higher risk individual:
. . . .
(ii) Has an underlying health condition, verified as required by the
department by rule, that is identified as a risk factor for the disease that is
the subject of the public health emergency by:
(A) The federal centers for disease control and prevention;
(B) The department of health; or
(C) The equivalent agency in the state where the individual resides.
ESD contends that the 2021 statute should not be applied retroactively. Kyle
Smith asks us to apply the statute retroactively. Because we may resolve this appeal on
other grounds, we do not perform a retroactivity analysis.
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No. 38895-6-III,
Smith v. Employment Security
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CONCLUSION
We reverse the ESD commissioner’s denial of unemployment benefits to Kyle
Smith. We award Smith benefits from May 10 to June 13, 2020.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Siddoway, C.J.
______________________________
Pennell, J.
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