Klampfer v. UCBR - Cmwlth. Court – 2-1-18 – unreported memorandum opinion**
Claimant was terminated after she
called off work four (4) times within two weeks of her return to work after
undergoing open heart surgery and being on approved FMLA leave. Claimant got a doctor’s note, stating that
her absences were legitimate, but was unable to provide it until after she was
terminated. The ER policy stated that
termination would result with 4 chargeable absences (anything other than a
death in the family within a 90-day period.
ER policy did not specify a time limit on providing a doctor’s note,
which would have resulted in collapsing the four absences into one.
Willful
misconduct
The court held that, under the
circumstances, claimant did not commit willful misconduct.
An
employer seeking to prove willful misconduct by a policy violation must
demonstrate the existence of the policy, its reasonableness, and its violation.
Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d 518 (Pa. Cmwlth. 1999).
“The employer must also show that the employee intentionally or deliberately
violated the work rule.” Chester Cmty. Charter Sch. v. Unemployment Comp. Bd.
of Review, 138 A.3d 50, 54 (Pa. Cmwlth. 2016) (emphasis added). This Court
“must determine if the work rule is reasonable in light of all the
circumstances and whether [a claimant] had good cause to violate the work
rule.” Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 703 A.2d 452, 459
(Pa. 1997).
Absence
due to illness is not willful misconduct.
“[T]he
law is clear that absence due to illness is not willful misconduct.” Green v.
Unemployment Comp. Bd. of Review, 433 A.2d 587, 589 (Pa. Cmwlth. 1981) (reversing
Board determination that claimant’s seven absences constituted willful
misconduct when some absences related to sickness); see Tritex Sportwear, Inc.
v. Unemployment Comp. Bd. of Review, 315 A.2d 322 (Pa. Cmwlth. 1974). When the
violation of an employer’s absence policy is grounds for termination, and the
policy makes no distinction between absences for illness and absences for other
reasons, there is no willful misconduct based on the policy violation alone.
Green.
In
this case, as in Green, there was
“ no willfulness in Claimant’s violation of the Policy when she was absent four
times within 90 days as a result of her illness. When a claimant violates a
policy because of her illness, we do not ascribe deliberate disregard to her
violation. See Phila. Parking Auth. v. Unemployment Comp. Bd. of Review, 1 A.3d
965 (Pa. Cmwlth. 2010) (inadvertent violation of employer’s rule does not
constitute willful misconduct). While such absences may be a reason for
discharge, they are not a reason for a denial of UC benefits. Runkle v.
Unemployment Comp. Bd. of Review, 521 A.2d 530 (Pa. Cmwlth. 1987); Green. The fact that the manager warned Claimant
about potential discipline as a result of her absences without documentation
does not alter this conclusion.
The
application of the ER policy is this case was unreasonable. Phila. Parking
Auth. v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 609 C.D. 2015,
filed November 17, 2015), 2015 WL 7356313 (unreported) (holding employer
unreasonably applied policy to claimant who had serious health condition). “[A]pply[ing] its regular policy for
employees who have called in sick, to an employee who has requested, certified,
and received leave under the FMLA is not reasonable.” Id., slip op. at 9, 2015
WL 7356313, *5.
Good cause
The
court went on to hold that, even though claimant’s actions did not constitute
willful misconduct, it nevertheless recogniaed that a claimant with a document
illness has goode cause for
non-compliance with an employer directive.
=====================
**An
unreported Commonwealth Court case may not be cited binding precedent but can
be cited for its persuasive value. See 210 Pa.
Code § 69.414(b) and Pa. R.A.P.
3716
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