# Dougherty v. Unemployment Compensation Board of Review

> Commonwealth Court of Pennsylvania · December 3, 1996 · 686 A.2d 53

URL: https://www.frixlaw.com/law-library/cases/4953411

## Case

- **Full name:** Darrin A. DOUGHERTY v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** December 3, 1996
- **Citations:** 686 A.2d 53; 65 U.S.L.W. 2440; 1996 Pa. Commw. LEXIS 495
- **Precedential status:** Published
- **Opinion:** Dissent by Friedman
- **Judges:** Friedman, McGinley, Narick
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

FRIEDMAN, Judge,
dissenting.
Because I do not believe that Darrin A. Dougherty’s (Claimant) refusal to work with AIDS patients under the circumstances here amounts to disqualifying willful misconduct, I respectfully dissent.
The majority correctly notes that where an employee is discharged for refusing to follow an employer’s directive, we must examine both the reasonableness of the demand and the reasonableness of the employee’s refusal. However, the majority, without ever addressing the reasonableness of Employer’s demand in this case, bases its determination on Claimant’s failure to establish good cause for his refusal to follow Employer’s reasonable directive to work with AIDS patients. Like Claimant, I do not believe that it is unreason *56 able for a long-term health care facility to assign its employees to work with AIDS patients as long as those employees are provided ivith proper training and equipment for the job. Thus, if Employer had provided Claimant with the necessary protective gear for such work, 1 I would agree with the majority that Claimant’s refusal to perform his job assignment would be based on unnecessary fears and misconceptions concerning AIDS, so as to disqualify Claimant from receiving benefits. However, where, as here, Employer demanded that Claimant perform his new assignment with only rubber gloves for protection, I cannot agree that Employer satisfied its burden to prove that its directive was, in fact, reasonable, or that Claimant’s refusal to work under those conditions constituted willful misconduct. „ Accordingly, I would reverse.
. In this regard, I note that, although the majority concedes that Claimant came in contact with bodily fluids during his daily routine, (majority op. at 6), the majority nonetheless concludes that Claimant did not establish that his job duties were the type that required precautions other than the use of rubber gloves. (Majority op. at 5.) In reaching this conclusion, the majority relies on the fact that Claimant did not testify that he was involved in procedures such as tra-cheostomies or surgery and, in so doing, ignores Employer's own policy concerning Universal Precaution. That policy does not limit use of additional precautions to situations where health care workers are involved in a tracheostomy or surgery, but, rather, requires masks, protective eye wear and cover gowns where, as here, an employee is exposed to body fluids, by stating:
B. Mask and Protective Eye Wear — must be worn during procedures that are likely to generate droplets of blood or other body fluids to prevent exposure of mucous membranes of the mouth, nose and eyes.
Example: Suctioning a tracheostomy or being in prolonged close contact (within 3 feet) of a person who is coughing and does not cover the mouth.
C. Cover Gowns or Aprons — must be worn during procedures that are likely to result in splashes of blood or body fluids to the clothing.
(R.R. at 14a, emphasis added.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4953411. Public record. Not legal advice.