Tuesday, February 06, 2018

UC - willful misconduct - absences - illness

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.

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**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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