Balise v. Department of Labor: Record-Based Review and Health-Related Defenses in Unemployment Misconduct Cases

Balise v. Department of Labor: Record-Based Review and Health-Related Defenses in Unemployment Misconduct Cases

Court: Vermont Supreme Court (three-justice panel, nonprecedential entry order)
Case: Todd Balise v. Department of Labor (Lincoln Street, Inc.), No. 25-AP-181
Date: December Term, 2025 (Entry Order)
Tribunal Below: Vermont Employment Security Board, Case No. 07-24-021-01

Note: As the entry order itself states, “Decisions of a three-justice panel are not to be considered as precedent before any tribunal.” The discussion below therefore treats the decision as persuasive authority and as an illustration of how existing doctrine is applied, rather than as binding precedent.

I. Introduction

This entry order from the Vermont Supreme Court concerns a dispute over unemployment compensation, specifically:

  • whether an employee discharged for poor performance was properly disqualified from certain unemployment benefits on the ground of “misconduct connected with his work”; and
  • whether, and at what stage, a claimant can rely on medical evidence to invoke the “health-leaving” limitation in 21 V.S.A. § 1344(a)(3), which reduces disqualification where a worker leaves employment because of a certified health condition.

The claimant, Todd Balise, acting without counsel, argued that his deteriorating health and a medication-related cognitive decline—not misconduct—caused the performance problems that led to his termination from Lincoln Street, Inc. He sought to introduce a post-termination cardiology note as evidence that a health condition precluded him from performing his duties, and he asked the Vermont Supreme Court to vacate the Employment Security Board’s decision.

The Court declined to consider the new medical documentation, held that the Board had not abused its discretion in refusing to remand for additional evidence, and affirmed the Board’s conclusion that the claimant was disqualified for misconduct. The opinion reinforces several key principles:

  • the strict record-based nature of appellate review in Vermont;
  • the burden on claimants who invoke the health-leaving provision to produce timely medical certification linking their departure from employment to a disabling health condition; and
  • the limited obligation of tribunals to reopen or remand cases when a party voluntarily withholds available evidence for strategic or privacy reasons.

II. Factual and Procedural Background

A. Employment and Discharge

The Board’s findings, adopted from the administrative law judge (ALJ), show the following employment history:

  • Prior to termination, the employer placed Balise on a performance-improvement plan in response to “substandard work conduct.”
  • The employer targeted deficiencies in communication and completion of assigned tasks, documenting that Balise failed to meet expectations regarding the “level of engagement and management necessary” for his position.
  • Regular meetings were scheduled between Balise and his supervisor to counsel him and monitor progress.
  • Despite these interventions, the employer issued a final written warning in March 2024.
  • Balise was discharged in April 2024 for failing to complete required tasks.

The Department of Labor’s claims adjudicator concluded that the discharge was for “misconduct connected with his work,” triggering a period of disqualification and a benefit cap under 21 V.S.A. §§ 1340(b) and 1344(a)(1)(A).

B. Initial Agency Proceedings Before the ALJ

After the adverse determination by the claims adjudicator in June 2024, Balise appealed to an ALJ. An evidentiary hearing was held in October 2024.

The Department’s notice advised the parties that they would have the opportunity to submit additional documentation for the ALJ’s consideration. Balise, however, did not offer any documentary medical evidence at the hearing.

Instead, he testified that:

  • Beginning in late fall 2023 and continuing through April 2024, he suffered a “serious decline” in his health.
  • The decline was “exacerbated” by his resistance to a prescribed heart medication.
  • This resistance led to cognitive decline, impairing his memory, planning, and problem-solving abilities.
  • He had “very little insight as to what was occurring” at the time, and his employer was unaware of the nature or extent of his health problems.

The ALJ issued a written decision in November 2024, upholding the claims adjudicator’s conclusion that Balise had been discharged for misconduct connected with his work.

C. Appeal to the Employment Security Board

Balise appealed to the Employment Security Board, which held a hearing in April 2025. Before the Board he shifted emphasis to the claim that his performance issues were caused by his health condition.

Relevant points from the Board hearing include:

  • Balise argued that his performance deficiencies stemmed from a medication-related cognitive decline, not intentional or negligent misconduct.
  • He noted that his symptoms were “all medically documented” and stated, “If I need to submit health records, I can.”
  • He requested that, if the Board found insufficient evidence of a health-related cause, it should remand to the ALJ to take additional evidence.
  • He explained that he had not “necessarily” wanted to submit the documentation earlier because it was “protected health information.”

The Board:

  • Adopted the ALJ’s factual findings in full; and
  • Sustained the ALJ’s legal conclusion that the employer met its burden of proving discharge for misconduct connected with work.

As to the health argument, the Board observed that:

  • The record contained no certification from a health-care provider or other documentary proof substantiating the alleged symptoms.
  • Given Balise’s assertion that neither he nor the employer understood the nature and extent of his condition until after termination, the record was insufficient to show that his separation from employment was due to a certified health condition within the meaning of 21 V.S.A. § 1344(a)(3).

D. Appeal to the Vermont Supreme Court

Balise, again self-represented, appealed to the Vermont Supreme Court.

On appeal, he:

  • Filed a motion to vacate the Board’s decision.
  • Sought to submit new evidence for the first time on appeal: a clinical note from a cardiology clinic visit in June 2024, which he says was mailed in August 2024.
  • Argued that this evidence showed he was unable to perform his duties due to a health condition, and thus that the discharge should not be treated as “misconduct connected with work.”
  • Did not otherwise challenge the Board’s factual findings or legal conclusions.

The Department of Labor responded by:

  • Asking the Court to deny the motion to vacate on the merits and as inconsistent with the Vermont Rules of Appellate Procedure; and
  • Moving to strike, correct, or modify those portions of Balise’s filing that contained the new medical evidence, because it was not introduced below and therefore not part of the record on appeal.

The Court, while noting that self-represented litigants receive some procedural leeway under Zorn v. Smith, 2011 VT 10, ¶ 22, 189 Vt. 219, declined to strike Balise’s filings solely on technical grounds. But it agreed with the Department that the new materials could not be considered on appeal and, ultimately, affirmed the Board.

III. Summary of the Supreme Court’s Decision

The Vermont Supreme Court’s key determinations can be summarized as follows:

  1. Scope of Review and Record Limitation
    The Court reaffirmed that appellate review is confined to the record created below. Documents not submitted to the ALJ or the Board—such as the June 2024 cardiology note—cannot be considered on appeal. (Hoover v. Hoover, 171 Vt. 256, 258 (2000)).
  2. No Basis for Remand to Take New Evidence
    Under 3 V.S.A. § 815(b), a remand to take additional evidence requires a showing that:
    • the new evidence is material, and
    • there were good reasons for failing to present it earlier.
    The Court concluded that Balise did not make this showing and that the Employment Security Board did not abuse its discretion in declining to remand the case to the ALJ. (Miner v. Dep’t of Emp. & Training, 144 Vt. 211, 213 (1984)).
  3. Burden to Prove Health-Related Limitation on Disqualification
    The Court explained that the “health-leaving” provision of 21 V.S.A. § 1344(a)(3) limits disqualification where a claimant leaves work because of a health condition certified by a health-care provider that precludes performance of job duties. The claimant bears the burden of proof, and a provider’s certification, while necessary, is not dispositive. (Davis, Favreau (1991), Duggan).
  4. Employer’s Burden Met on Misconduct
    The Board’s findings—that Balise failed to meet documented performance standards despite a performance-improvement plan, counseling, and a final warning—reasonably supported the conclusion that he was discharged for misconduct connected with his work under 21 V.S.A. §§ 1340(b), 1344(a)(1)(A). The Court noted that it would uphold the Board’s findings unless clearly erroneous and its conclusions if reasonably supported by those findings. (863 To Go; Beasley).
  5. Self-Represented Status Does Not Relax Substantive Requirements
    While self-represented litigants receive some procedural leeway, they are still bound by substantive rules governing burdens of proof, standards of review, and record limitations. The Court declined to disturb the Board’s decision or to give Balise a second chance to introduce documentation he consciously withheld.

On this basis, the Court affirmed the Board’s decision disqualifying Balise from receiving certain unemployment benefits due to misconduct connected with his work.

IV. Legal Framework

A. Misconduct Disqualification: 21 V.S.A. §§ 1340(b), 1344(a)(1)(A)

Vermont’s Unemployment Compensation Act disqualifies claimants in two key ways when they are discharged for work-related misconduct:

  • Under 21 V.S.A. § 1340(b), a claimant may be disqualified from receiving benefits for six to fifteen weeks if discharged for misconduct connected with work.
  • Under 21 V.S.A. § 1344(a)(1)(A), such a claimant is also subject to a benefit cap, reducing the maximum benefits available for the benefit year.

The governing definition of “misconduct” is supplied by case law. In Favreau v. Dep’t of Emp. & Training, 151 Vt. 170, 172 (1989), the Court held that:

“[A]n employee’s misconduct must be in substantial disregard of the employer’s interest, his disregard being either willful or culpably negligent.”

The discharge must involve more than mere inefficiency or good-faith mistakes; it must show:

  • a substantial disregard of the employer’s interests or of the employee’s duties and obligations; and
  • that disregard must be either willful or the product of culpable negligence.

The employer bears the burden of proving misconduct. (Johnson v. Dep’t of Emp. Sec., 138 Vt. 554, 555 (1980) (per curiam)).

B. Health-Leaving Provision: 21 V.S.A. § 1344(a)(3)

The “health-leaving” provision, 21 V.S.A. § 1344(a)(3), modifies the normal disqualification scheme where employment ends because of a health condition. It provides that a claimant:

“may not be disqualified for benefits for more than six weeks if the individual left the employ of the individual's last employing unit without good cause attributable to the employing unit because of a health condition, as certified by a health care provider ... that precludes the discharge of duties inherent in such employment.”

Important features:

  • The claimant must have left employment “because of a health condition”.
  • The health condition must be certified by a health-care provider.
  • The health condition must preclude performance of the job’s inherent duties.
  • Disqualification is capped at six weeks in such cases, which is generally more favorable than the six-to-fifteen-week range for misconduct and may avoid a harsher benefit cap.

Two decisions elaborate this framework:

  • Davis v. Dep’t of Emp. Sec., 140 Vt. 269, 273–74 (1981)
    The certification requirement is satisfied by “any form which affirms the fact in writing”; it need not be a particular official form. But there still must be some written affirmation by a provider.
  • Favreau v. Dep’t of Emp. & Training, 156 Vt. 572, 576 (1991)
    Submission of a provider’s certification is not dispositive. The claimant must still prove that:
    • the medical condition actually caused the departure; and
    • it would have precluded the claimant from performing the duties inherent in the job.
    The burden of proof remains with the claimant.

These principles are also reflected in the unpublished memorandum decision in Duggan v. Dep’t of Labor, No. 2013-002, 2013 WL 3491181 (Vt. July 11, 2013), where the claimant failed to establish that § 1344(a)(3) applied despite submitting a medical-certification form.

C. Burdens of Proof

The case implicates two distinct burdens of proof:

  1. Employer’s burden on misconduct
    Where disqualification is based on “misconduct connected with the work,” the employer bears the burden of proof. (Johnson). The employer must show, by a preponderance of the evidence, misconduct in the sense of a substantial, willful, or culpably negligent disregard of the employer’s interests or the employee’s duties.
  2. Claimant’s burden on health-leaving
    Where a claimant invokes the protection of § 1344(a)(3), the claimant bears the burden of demonstrating:
    • the existence of a health condition,
    • that the condition precluded performance of the job’s inherent duties, and
    • that the claimant left employment because of that health condition.
    (Favreau (1991); Duggan).

D. Appellate Review and the Record on Appeal

The Vermont Supreme Court repeatedly emphasizes the limited scope of its review:

  • Review of the Employment Security Board is “highly deferential.” (863 To Go, Inc. v. Dep’t of Labor, 2014 VT 61, ¶ 8, 196 Vt. 551).
  • The Court will:
    • uphold the Board’s factual findings unless they are clearly erroneous; and
    • uphold its legal conclusions if they are reasonably supported by the findings. (Beasley v. Dep’t of Labor, 2018 VT 104, ¶ 9, 208 Vt. 433).
  • The appellant bears the burden to show reversible error. (Harrington v. Dep’t of Emp. Sec., 142 Vt. 340, 345 (1982)).
  • The Court’s review is confined to the record and evidence adduced below; it cannot consider facts not in that record. (Hoover v. Hoover, 171 Vt. 256, 258 (2000)).

The statute governing remand for additional evidence, 3 V.S.A. § 815(b), authorizes the Court to remand an agency case to take additional evidence only if:

  • the additional evidence is material; and
  • there were good reasons for failing to present it in the agency proceeding.

The decision in Miner v. Dep’t of Emp. & Training, 144 Vt. 211, 213 (1984), underscores that whether to remand is a matter of Board discretion, and a party that had an opportunity to present evidence and chose not to do so is typically not entitled to a remand.

V. Analysis of the Court’s Reasoning

A. Refusal to Consider New Medical Evidence on Appeal

At the heart of Balise’s appeal was his attempt to rely on a June 2024 cardiology clinic note, allegedly mailed in August 2024, to show that a health condition prevented him from performing his job.

He asked the Vermont Supreme Court essentially to:

  • accept the new document as evidence, and
  • on that basis, vacate the Board’s decision and conclude that he was not discharged for misconduct but because of health-related inability to work.

The Court did not accept this invitation. Citing Hoover v. Hoover, it stated that appellate review is confined to “the record and evidence adduced at trial” and that it “cannot consider facts not in the record.” Because the cardiology note was never presented to the ALJ or the Board, it was not part of the administrative record. Accordingly, the Court refused to consider it.

This strict insistence on the record serves several purposes:

  • It preserves the integrity of the administrative fact-finding process, ensuring that evidence is tested in the proper forum.
  • It promotes fairness by preventing one side from sandbagging the other with new evidence at the appellate level.
  • It respects the division of functions between agencies (which find facts) and courts (which mainly review for legal correctness and reasonableness).

Although the Department sought to strike the extra-record materials entirely, the Court declined to do so “on purely procedural grounds,” referencing Zorn v. Smith for the proposition that self-represented litigants receive some leeway. But this leeway went only to how the filings were treated procedurally, not to the substantive rule that extra-record evidence cannot influence appellate outcomes.

B. The Health-Leaving Provision and the Importance of Timely Certification

Balise’s core substantive argument was that he did not engage in misconduct, but instead suffered from a medication-related condition that impaired his cognition and led to poor performance. This argument “implicated” the health-leaving provision of 21 V.S.A. § 1344(a)(3), because, if proven, it could potentially reduce the duration and severity of disqualification.

The Court, however, highlighted two critical obstacles:

  1. Lack of Health-Care Provider Certification in the Record
    The Board found—and the Court agreed—that the administrative record contained no certification from a health-care provider or other medical documentation substantiating the alleged condition or linking it to Balise’s job performance. As Davis makes clear, the statute requires some written form affirming the health condition from a provider; Balise produced none during the ALJ or Board proceedings.
  2. Causation and Incapacity Not Established
    Even if a certification had been provided later, the case law (Favreau (1991), Duggan) shows that such certification would not by itself establish entitlement to § 1344(a)(3) protection. The claimant must prove that:
    • the health condition actually caused the separation from employment, and
    • the condition precluded the discharge of duties inherent in such employment at the time of separation.
    In Balise’s case, the record (as it stood before the agency) was insufficient on these points; indeed, he asserted that neither he nor the employer fully understood the condition’s nature or extent until after his termination.

Thus, on the record properly before it, the Court had no basis to treat the separation as one covered by § 1344(a)(3), and certainly no basis to recast the termination as non-misconduct based on a health exception not properly proven.

C. Misconduct Determination and Employer’s Burden

The Court did not reweigh the evidence underpinning the misconduct finding; instead, it accepted the Board’s findings as supported by evidence:

  • a documented performance-improvement plan,
  • ongoing counseling and monitoring,
  • a final written warning, and
  • ultimate discharge for failing to complete required tasks.

Under Favreau (1989), misconduct requires a substantial, willful, or culpably negligent disregard of employer interests or duties. The Board concluded that, in light of the repeated warnings and opportunities for correction, Balise’s failure to meet standards rose to this level.

The Supreme Court’s institutional role is not to substitute its judgment on contested facts but to ensure that:

  • the Board’s findings are supported by the record (the “clearly erroneous” standard); and
  • its legal conclusions reasonably follow from those findings.

Given the absence of any challenge to the underlying findings, and given the established definition of “misconduct,” the Court readily concluded that the Board’s determination was legally supportable. The employer had met its burden.

D. Discretion to Remand for Additional Evidence

A subtler issue was whether the Board erred in declining to remand the case to the ALJ to take additional evidence about Balise’s health condition, as he requested at the Board hearing.

Two layers of analysis are involved:

  1. The Supreme Court’s Remand Authority (3 V.S.A. § 815(b))
    The Court noted that § 815(b) allows it to remand to the agency when new evidence is:
    • material; and
    • there were good reasons for not presenting it earlier.
    Importantly, Balise did not ask the Supreme Court for such a remand; he asked the Court itself to consider the new evidence. In any event, even if his request were construed as seeking a remand, his own statements undercut the existence of “good reasons” for the delay.
  2. The Board’s Discretion and the Claimant’s Strategic Choice
    The Court also reviewed the Board’s refusal to remand for additional evidence under an “abuse of discretion” standard (Miner; Board Rule 15(C)). It pointed to two key facts:
    • Balise said the cardiology note was mailed in August 2024, and the ALJ hearing occurred in October 2024, suggesting the evidence was available before the ALJ hearing.
    • At the Board hearing, Balise stated that his condition was “all medically documented” and explicitly admitted that he did not submit the documentation earlier because it was “protected health information,” not because it was unavailable.
    These statements parallel the situation in Miner, where the employer “had the opportunity to present its evidence and chose, for whatever reason, to forgo that opportunity.” The Court held that, “just so here,” the claimant made a strategic or privacy-based decision not to introduce his medical documentation at the proper time. The Board was therefore not required to give him a second opportunity.

Consequently, Balise failed to show that the Board abused its discretion in denying a remand to the ALJ, either at the administrative level or on judicial review.

VI. Precedents Cited and Their Influence

1. 863 To Go, Inc. v. Dep’t of Labor, 2014 VT 61, 196 Vt. 551

Cited for the proposition that judicial review of Employment Security Board decisions is “highly deferential.” This frames the entire appellate inquiry: the Court will not lightly disturb the Board’s factual and discretionary determinations.

2. Beasley v. Dep’t of Labor, 2018 VT 104, 208 Vt. 433

Relied on for the dual standard that:

  • factual findings are upheld unless clearly erroneous; and
  • legal conclusions are upheld if reasonably supported by the findings.

This standard confirms the limited role of the Court in reviewing unemployment decisions and underlies its acceptance of the Board’s misconduct finding.

3. Harrington v. Dep’t of Emp. Sec., 142 Vt. 340 (1982)

Quoted for the principle that the appellant bears the burden to demonstrate reversible error. This underscored that it was Balise’s responsibility to show why the Board’s denial of benefits or refusal to remand was legal error, a burden he did not carry.

4. Johnson v. Dep’t of Emp. Sec., 138 Vt. 554 (1980) (per curiam)

Establishes that when “misconduct” is the asserted basis for disqualification, the employer bears the burden of proof. The Court accepts that this burden was met through the employer’s documented performance management efforts and the final warning before discharge.

5. Davis v. Dep’t of Emp. Sec., 140 Vt. 269 (1981)

Clarified the health-care provider certification requirement in § 1344(a)(3): any written form that affirms the health condition will suffice; no special form is required. The Court uses Davis to emphasize what was missing from the record in Balise’s case—a written certification of a health condition from a provider.

6. Favreau v. Dep’t of Emp. & Training, 151 Vt. 170 (1989) & 156 Vt. 572 (1991)

Two different Favreau decisions are cited for distinct propositions:

  • 1989 Favreau: defines “misconduct” as substantial, willful, or culpably negligent disregard of employer interests. This standard frames the misconduct analysis.
  • 1991 Favreau: explains that, under § 1344(a)(3), submission of a physician’s certification is not dispositive; the claimant must still show that:
    • the health condition caused the job separation; and
    • it would have precluded performance of job duties.
    The Court analogizes this to Balise’s case, where there was not even a certification, and certainly no proof of causation and incapacity in the record.

7. Duggan v. Dep’t of Labor, No. 2013-002, 2013 WL 3491181 (Vt. July 11, 2013) (unpublished)

Cited as another example where a claimant failed to meet the burden of proving that § 1344(a)(3) applied, even though a medical-certification form had been submitted. The lesson is that medical documentation is necessary but not sufficient; a strong evidentiary showing is required.

8. Hoover v. Hoover, 171 Vt. 256 (2000)

Provides the central rule for this case: the Supreme Court’s review is confined to the record and evidence adduced at trial, and it cannot consider facts not in that record. This is why the June 2024 cardiology note could not be considered on appeal.

9. Miner v. Dep’t of Emp. & Training, 144 Vt. 211 (1984)

Stands for two propositions:

  • The decision to remand for taking additional evidence lies within the discretion of the Board.
  • Where a party had the opportunity to present its evidence and chose not to, refusal to reopen the record is not an abuse of discretion.

The Court analogizes Balise’s situation to that in Miner: he had the opportunity to present his medical documentation and consciously decided not to because of privacy concerns; the Board did not abuse its discretion by refusing to remand.

10. Zorn v. Smith, 2011 VT 10, 189 Vt. 219

Cited for the notion that self-represented litigants receive “some leeway” from the courts. The Court uses this to justify not striking Balise’s filings on technical grounds. However, Zorn does not alter the substantive legal standards or the record-based nature of appellate review.

VII. Complex Concepts Simplified

A. “Misconduct Connected with the Work”

In everyday terms, “misconduct connected with the work” means more than just being a poor performer or occasionally making mistakes. It involves:

  • a serious failure to meet job responsibilities that harms the employer’s interests, and
  • conduct that is either:
    • intentional (the employee knew what was required and chose not to comply), or
    • culpably negligent (the employee was extremely careless, beyond ordinary negligence).

Repeated failure to perform, especially after written warnings and a performance-improvement plan, often supports a finding of misconduct, even if the employee does not subjectively intend harm.

B. The “Health-Leaving” Provision (21 V.S.A. § 1344(a)(3))

This provision addresses situations where a worker leaves a job primarily because of a health problem. If the worker can show that:

  • they left employment because of a health condition;
  • a health-care provider certifies the condition; and
  • the condition made it impossible to perform the job’s inherent duties,

then the law limits how long the worker can be disqualified from benefits—no more than six weeks, even if the departure might otherwise be considered disqualifying.

But the worker must prove the link between the health condition and the job separation with acceptable evidence; it is not enough merely to assert poor health.

C. “Certification” by a Health-Care Provider

“Certification” in this context means a written statement from a health-care provider (e.g., doctor, nurse practitioner, physician’s assistant) that confirms:

  • the existence of a particular health condition; and
  • that the condition affects the worker’s ability to perform job duties.

It does not have to be on a special government form; any written affirmation can suffice. However, per Favreau (1991) and Duggan, the existence of such a certification does not automatically prove that the worker left employment because of the condition or that it precluded job performance. Those facts must still be substantively demonstrated.

D. Appellate Standards: “Clearly Erroneous,” “Abuse of Discretion,” and “Record on Appeal”

  • Clearly erroneous: The appellate court will overturn a factual finding only if, after reviewing the record, it is left with a firm conviction that a mistake has been made. If there is reasonable evidence to support the finding, it will stand.
  • Abuse of discretion: When a matter is entrusted to a tribunal’s discretion (e.g., whether to remand for more evidence), the appellate court will overturn that decision only if it was clearly unreasonable, arbitrary, or based on an error of law. A mere disagreement about how the discretion was exercised is not enough.
  • Record on appeal: The “record” consists of the documents, exhibits, and testimony that were actually presented to the agency or trial court. Appellate courts do not take new evidence. They decide whether the lower decision was correct based on the record that existed at the time.

E. Balancing Privacy of Health Information and Burden of Proof

Balise’s case also illustrates a practical tension:

  • Claimants may be reluctant to disclose sensitive protected health information (PHI) in a public or adversarial setting.
  • However, to benefit from provisions like § 1344(a)(3), they bear the burden of proving that:
    • they have a qualifying health condition, and
    • it caused or necessitated their separation from employment.

In effect, the law gives claimants a choice: they may protect their privacy by not submitting medical documentation, but then they may fail to meet their burden of proof and may not receive certain unemployment protections. The Court’s decision shows that privacy-based reluctance to submit evidence does not, by itself, justify reopening the record later.

VIII. Practical and Doctrinal Impact

A. Implications for Claimants and Self-Represented Parties

Even though this is a nonprecedential entry order, it carries significant practical lessons:

  • Introduce all relevant evidence early. Claimants who have medical documentation supporting a health-related defense must submit it at the ALJ hearing or, at the latest, during Board review. Waiting until appeal to the Supreme Court is too late.
  • Understand the trade-off between privacy and proof. Choosing not to submit medical records because they contain sensitive information can severely weaken, or effectively forfeit, a health-based defense.
  • Self-represented leeway is limited. Courts may relax procedural requirements slightly for pro se litigants, but they will not waive substantive rules about the record, burdens of proof, or standards of review.
  • Be precise in requests for remand. To succeed on a request to reopen a case to receive new evidence, a claimant must show:
    • that the evidence is material (it could change the outcome), and
    • there were good reasons it was not presented earlier (e.g., it truly was not available despite due diligence).
    A choice not to submit available evidence, as here, is typically not a “good reason.”

B. Implications for Employers

For employers, the decision reinforces:

  • The importance of documentation—performance-improvement plans, written warnings, and records of counseling meetings were key to sustaining the misconduct finding.
  • The value of clearly articulated expectations and consequences—by establishing expectations and providing warnings, employers strengthen the argument that an employee’s ongoing failures amount to misconduct.
  • The need for caution regarding unknown medical issues—employers are not expected to divine undisclosed medical conditions, but if they know or suspect health issues, they should proceed carefully to avoid potential discrimination concerns (not addressed directly in this case, but always in the background).

C. Implications for the Department and Employment Security Board

For the Department of Labor and the Employment Security Board, the entry order:

  • Confirms their authority to enforce procedural boundaries—particularly regarding when evidence must be submitted and when remand is appropriate.
  • Encourages clear communication in notices about the opportunity and expectation to present evidence at the ALJ stage.
  • Supports a cautious approach to remands: if a party simply chose not to present evidence when given the chance, the Board is within its rights to deny a remand for “do-over” purposes.

D. Broader Unemployment Law Implications

Doctrinally, the decision does not establish new law, but it underscores and harmonizes several existing threads:

  • Strict adherence to the record on appeal, even when sympathetic circumstances (like health issues) are involved.
  • Robust burdens for invoking the health-leaving protection: claimants must come forward with timely, certified, and causally linked medical evidence.
  • Balanced treatment of self-represented litigants: some procedural latitude, but no relaxation of substantive evidentiary requirements or burdens of proof.
  • Deference to administrative expertise and discretion, especially in decisions about remand for additional evidence.

These principles, though expressed in a nonprecedential format, are consistent with the Court’s prior case law and can be expected to inform how future cases are argued and decided.

IX. Key Takeaways and Conclusion

Balise v. Department of Labor is best understood as a cautionary illustration rather than a doctrinal watershed. It reiterates that:

  • Appellate courts in Vermont will not consider new evidence that was not part of the administrative record;
  • Claimants who seek the protection of 21 V.S.A. § 1344(a)(3) must:
    • obtain and submit timely written certification from a health-care provider, and
    • prove that the certified health condition caused their separation and precluded them from performing their job;
  • Employers bear the burden to prove misconduct, but documented performance management and progressive discipline can be sufficient to meet that burden;
  • Tribunals have considerable discretion in deciding whether to remand for additional evidence, and they need not grant a second chance to a party that intentionally withheld evidence for strategic reasons; and
  • Self-represented litigants, while afforded some procedural leniency, remain fully bound by the evidentiary and substantive rules that govern unemployment appeals.

In the broader legal landscape, the case reinforces the importance of front-loading evidence—particularly medical evidence—in unemployment proceedings. Claimants who believe that health conditions explain or justify their separation from employment must be prepared to document and present those conditions early, even at the cost of disclosing sensitive information, if they wish to secure the protections of Vermont’s unemployment law.

Case Details

Year: 2025
Court: Supreme Court of Vermont

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