Worker trades job for turkey:  Doctor's note not enough to validate absence

by Larry Clark

When Abby called in sick on the evening before Thanksgiving Day, her immediate supervisor asked her if she could work a light duty position which would have required her to sit with patients.  Abby said she was just too sick.  She stated that she had obtained a doctor's note.  Abby had been scheduled to work the 1 p.m. to 7 p.m. shift at a health care facility.  Later, one coworker told Abby's supervisor that she had overheard Abby's side of a telephone conversation with her fiancé.  Abby had reportedly told her prospective husband: "Well, I guess I'm just going to have to fake it."

Further investigation revealed that Abby had asked several coworkers if they would cover her shift on Thanksgiving.  When she was unable to get someone to work her shift, she told a coworker that she was going to take the time anyway because she had arranged to travel to Wyoming, a six or seven hour journey by car.  This coworker reminded her that other employees had been discharged for taking off on a holiday.  Abby replied that she would obtain a note from her doctor.  When Abby returned to work on Monday, December 1, she had a note from her doctor.  The employer called the doctor who stated that Abby had insisted on a note even though the doctor had not found any evidence of illness.  Based upon Abby's apparent falsification of the reason for her absence, the employer decided to discharge her; not due to her absence, but rather due to her lack of honesty.

Abby wasted no time filing for unemployment benefits.  The state unemployment agency paid the claimant benefits, based on the fact that she had given her employer a doctor's note.  Only in very rare circumstances will any state unemployment agency disqualify a worker whose final absence is justified by a doctor's written statement.  Nevertheless, the employer's representative believed there was sufficient evidence that the claimant had feigned her illness, and filed an appeal to an administrative law judge (ALJ).

A hearing was scheduled three weeks later.  The claimant showed up at the hearing with her fiancé.  The employer's witnesses included the human resource manager, the immediate supervisor and a coworker.  The testimony given by the employer's witnesses established that Abby had sought to get others to cover her shift, and when that had failed that she had obtained a doctor's note to satisfy her employer that she was ill.  She had spent the long weekend in Wyoming with her fiancé's family.  The claimant's doctor testified by telephone.  Responding to questions, the doctor (who worked for an affiliated health care facility) admitted that he had been persuaded to give Abby a note even though he found no objective evidence of illness.  Abby had come into his office right at the end of his shift and insisted that she needed a doctor's note for her employer.  In effect, the doctor testified that he had gone along with Abby's self-diagnosis and issued her a statement that she should take time off.

The ALJ surprised the claimant during the hearing and asked if she could call the mother of Abby's fiancé.  Abby reluctantly gave the judge the mother's telephone number.  The mother testified that Abby and her son had shown up for the Thanksgiving dinner (which was held Friday rather than Thursday).  The mother testified that Abby claimed to have a pain in her side.  She had, however, offered to help with the dinner.  Not too surprisingly, the judge ruled in favor of the employer.

Discharges due to excessive absenteeism generally meet the state unemployment agencies' definitions of disqualifying misconduct only when the final absence is shown to be avoidable and/or when the worker fails without good reason to notify the employer.  Employers must show an excessive number of absences and must demonstrate that the required number of prior warnings have been given, as dictated by the employer's policy.

"No fault" attendance policies are one of the most popular methods for dealing with worker absenteeism.  Such policies automatically assure that discharged workers have been duly warned or counseled and are aware that their next absence will result in termination.  Nevertheless, unless "no fault" attendance policies are handled properly, they often result in weak unemployment cases.  "No fault" attendance policies typically require employers to discharge workers who exceed a predetermined number of absences, or a percentage of hours worked, without regard to the reason for absence.  Because the reasons for being absent make no difference, employers often mistakenly fail to ask for (or record) the reasons given for each absence.  Without careful records of the reasons for each absence, it is virtually impossible to show abuse of the attendance policy.  In addition, no matter what caused prior absences, the worker's final absence must also have been avoidable or otherwise abusive of the employer's policy in order for the state to disqualify claimants from unemployment compensation.  A common pitfall is for employers to count time taken under the Family Medical Leave Act (FMLA) toward the limit of allowable time off.  They are unaware that regulations issued by the U.S. Department of Labor forbid an employer from counting FMLA leave time under "no fault" attendance policies.

The reason that many employers favor the "no fault" approach to monitoring worker attendance is that it takes the employer out of the role of judge and/or doctor.  All absences are weighed the same regardless of the reason.  Yet implementing a policy which forces the employer to discharge absent workers without considering the validity of their reasons means that many workers will be fired despite mitigating circumstances.  These same extenuating conditions often convince the state unemployment agencies that their final absences were beyond the claimants' control.

Is Employer Advocates recommending that employers abandon their "no fault" attendance policies? Not entirely.  There is ample evidence that the "no fault" approach to attendance problems can be highly effective.  However, abandoning your "no fault" policy for the final absence would allow you to overcome the major inherent weakness of the "no fault" approach as it relates to unemployment eligibility.  We recommend that employers consider exercising a "no fault" approach except for the final absence.  By retaining some flexibility over their response to the final absence, employers can take control of their absence-related unemployment claims.  In those instances where a worker's final absence is truly unavoidable and/or unforeseeable and where the worker has taken every reasonable opportunity to notify the employer in advance, the employer may choose to allow the worker one more absence before discharging him/her.  Otherwise, dismissing an employee following an absence for compelling reasons -- even when the woorker realizes that the final absence will lead to the loss of his/her job - will usually lead to the payment of jobless benefits.  Nevertheless, we understand that there may be times when an employer "for good business reasons" may elect to discharge a worker even when there are compelling reasons given for the final absence.  We just want you to understand, in advance, how the state will likely rule.

Larry Clark is a principle member of Employer Advocates LLC, and has been in the unemployment cost control industry for 35 years.

Disclaimer:  The information contained in the examples given on this page is general in nature and is not intended as legal advice.  There are no guarantees that a particular state unemployment adjudicator will rule as others have in the cited examples.  Individuals seeking legal advice concerning the handling of similar matters should consult with their attorney, rather than relying upon the information given.

The purpose of this document is to educate clients and potential clients about unemployment compensation. While some effort has been made to address the many differences in laws and procedures in the 53 different jurisdictions (each of the fifty states plus Puerto Rico, Washington D.C. and the Virgin Islands), the primary purpose of this presentation is to review some basic principles shared by many jurisdictions.