Tuesday, May 01, 2018

UC - willful misconduct - lack of willfulness - health reasons for absence - unreasonable rule

Klampfer v. UCBR – Cmwlth. Court – February 1, 2018

Held:  Claimant not guilty of willful misconduct for violating an employer rule concerning absences, where
            - she recently had heart surgery
            - employer granted her FMLA leave
            - she called off work four (4) times within 90 days of her return to work, for legitimate health reasons, in violation of employer rule
            - employer rule did not exempt legit. health reasons from its rule
            - claimant was not able to get doctor’s note until the very day that employer terminated her

No 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. UCBR, 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. UCBR, 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. UCBR, 703 A.2d 452, 459 (Pa. 1997). 

It is “undisputed here that claimant’s absences ere due to illness.”    “[T]he law is clear that absence due to illness is not willful misconduct.” Green v. UCBR, 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. UCBR, 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, we do not discern willful misconduct based on the policy violation alone. Green.   

Here, as in Green, the Court did not discern any element of “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. UCBR, 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. UCBR, 521 A.2d 530 (Pa. Cmwlth. 1987); Green. That Manager warned Claimant about potential discipline as a result of her absences without documentation does not alter this conclusion.  

In addition, a claimant with a documented illness has good cause for her absences. See, e.g., Phila. Parking Auth., 1 A.3d at 968 (“Physical illness can constitute good cause for a claimant’s noncompliance with an employer’s directive.”).   Moreover, Claimant’s uncontradicted testimony is sufficient evidence to establish good cause. Roberts v. UCBR, 977 A.2d 12 (Pa. Cmwlth. 2009) (reversing Board; holding claimant had good cause for rule violation under the circumstances based on claimant’s uncontradicted testimony). A claimant is not required to produce medical testimony to substantiate her illness; her own uncontradicted testimony is competent evidence of her illness. Phila. Parking Auth., 1 A.3d 965

Unreasonable application of employer rule
A claimant’s violation of an employer’s sick leave policy may be valid cause for discharge, but not for a denial of UC benefits. Phila. Parking Auth. v. UCBR  (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). In Philadelphia Parking Authority, the claimant reached her maximum sick leave under the policy, such that additional sick days led to discipline. As a result, she requested and received approved FMLA leave. Nonetheless, the employer discharged her for noncompliance with its sick leave policy. In concluding the claimant did not commit willful misconduct, we explained, “apply[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. The Policy here permits the discharge of an employee who is ill four times within a 90-day period regardless of the circumstances. Claimant is recovering from open-heart surgery. Claimant was absent because of illness four times in the two weeks following her medical leave. In light of these circumstances, Employer did not prove Claimant’s absences rose to the level of willful misconduct. Runkle; Green.

And because Claimant’s absences due to illness do not show a deliberate disregard for Employer’s interests, the Board erred as a matter of law in determining that Claimant’s four call offs within 90 days constituted willful misconduct.