UI Claim-Fired for Absenteeism; Claims it was for cancer

brendaboo88

A former employee has just filed for UI, claiming he was fired because he had had cancer earlier in his employment. Shortly after this employee was hired, he was diagnosed with testicular cancer. He was treated and released back to work with full duty assignments. It wasn't until AFTER he came back from his medical leave that he began having attendance problems. Most of his absences were from claims of being ill, and he would return to work with a doctor's note. They clearly weren't follow-up visits, because he would tell us that he was sick with the flu, or sick with a stomache virus, or sick with a toothache, etc, etc. He was disciplined both verbally and written warnings, and he was warned of his job being in danger, yet his attendance failed to improve. He was eventually terminated. Now, he claims that his absences were somehow related to him having had cancer earlier in his employment with our company. He won the initial UI claim, but we're appealing the decision. Any suggestions on how to go about tackling this outrageous claim? Any help will be greatly appreciated!
Baffled in Georgia

Leslie

We aren't having any luck in Arizona with unemployment for terms due to attendance. No matter the pattern, no matter the documentation, progressive discipline, whatever...if the former employee proves the final absence was beyond their control due to illness, we lose. So here, he wouldn't even have to prove the cancer was connected - all he'd have to prove is that the final absence - three day flu with doctor's excuse - was beyond his control.

San Francisco

In California and the several other states we deal with, a termination must be for a deliberate and wilful act for unemployment to be denied. Being sick is not considered a deliberate and wilful act and we never win those. The nature of the illness has nothing to do with it.

Elizabeth

DB

Maybe it was beginner's luck but I received a letter yesterday from Employment Security stating that an employee who was fired for attendance issues will NOT be eligible for unemployment. The employee had been warned, counseled, disciplined and signed a Last Chance Agreement. When she missed again, she was terminated. This was the inital finding by Unemployment and the employee still has the right to appeal but I can be hopeful!

I'm located in Illinois.

Donna

LindaS

Unfortunately I have to agree with the others. Only once in my career have I won an umeployment claim for a termination regarding absenteeism and that was because we, as the employer, went so far over what was reasonably expected of us and provided the employee with sooo many chances did we win.

Balloonman

You best hope with attendance that I have found is for no call no show. That will get the UI denied, but just missing/being absent will not.
My $0.02 worth.
DJ The Balloonman

brendaboo88

Thank you for everyone's input. The appeals hearing is Friday, so I'm just going to present the facts and cross my fingers!
Brenda

Nat

We have an attendance policy that is very fair and allows us to terminate and have successful UI Non-Charging. Just went through one heck-of-an appeal regarding termination due to attendance. Employee initially got benefits because of the reason she claimed to have been terminated. When we got to hearing I had everything in place to tell appeals referee. I had acknowledgement from employee that she had received the attendance policy, every date that the she missed and/or was tardy, every written warning (signed by the employee and went over all of this inch by inch with the appeals referee. I made sure to indicate that we are consistent in our attendance tracking, discipline and terminations. I can honestly say that I very rarely lose on attendance - it's the performance ones that get me. I make sure that every thing is in place when it comes time to terminate. Just make sure you have all the info you need to make your case and have a good closing statement that is confident and just gives the facts. In NC, luckily we don't have to prove action was willful misconduct to deny benefits. Good Luck.

jimlegal

Agree with the other posts, past practice reveals that attendance isn't a strong winner against unemployment claims.

Leslie

I had one where the EE was teasing with her manager saying she needed to go see her brother. He told her he couldn't let her go right then. She said, "Well then I guess I'll have to call in sick."

A couple weeks later she called her mgr and left a msg she was going to be out for more than two weeks with a respiratory something. No doctor's excuse. About a week later he calls her to tell her she must provide something from her doctor. No answer - calls several times - no answer. Come to find out she's visiting the brother in California. We term. She shows up a few days later saying she has the excuse - but not with her. Term upheld. She goes to unemployment.

At the hearing she not only has the doctor's excuse, but a death certificate for her brother. We lost.

smattmc

Funny, I was just looking around in here to see if I could find any tips on winning unemployment for excessive absenteeism. Seems this is a problem in most places (except NC, I see. Guess you have other headaches, though!) Here in KY we also have to prove willful misconduct. Good luck, Brenda!

Pork

PROFESSIONAL LAY OUT OF THE FACTS AND LET THE EEOC DECIDE. In our state one may be awarded Unemployment Benefits resulting from medical conditions not chargable to the employer. I have appealed two and both wee given Unemployment Benefits but we the employer were removed from the charge to our rating. Once you receive notification of the successful appeal make sure you check the rating schedule well after the fact. Both were listed as chargable, yet I had documentation to the contrary. Some times the State level agents do not know what another wing is doing. good luck, Pork