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EMPLOYERS: Terminations under a no-fault attendance policy could lead to unemployment insurance awards

Despite news reports, a recent Indiana Court of Appeals decision will not expand on an employee’s leave entitlement.  Employers do not have to offer employees more leave time for verified emergencies or personal or family health issues as a result of the recent Court opinion. However, employers should be aware of the potential for unemployment insurance claims under no-fault attendance policies. On Nov. 1, 2011, the Indiana Court of Appeals affirmed an award of unemployment insurance benefits to a former employee who violated the employer’s attendance policy. 

Under the employer’s attendance policy, employees who accumulated more than seven absences in one year were terminated.  The policy did not excuse absences for emergencies or illnesses not covered by the FMLA.  The employee at issue in this appeal accumulated more than seven absences and was terminated.  Her last two illnesses were a result of a medical emergency for herself and a medical emergency for her terminally ill husband. The Court of Appeals affirmed the Review Board of the Indiana Department of Workforce Development’s award of unemployment insurance benefits.  The Review Board found, and the Court of Appeals agreed, that the employer’s attendance policy was unreasonable (under unemployment insurance standards only) because there were no exceptions for verified emergencies or situations beyond the employee’s control. 

The Court further found that personal and family health issues are generally considered to be legitimate substantive reasons for missing work.  There was no “just cause” for the employee’s termination because her absences were a result of circumstances beyond her control.  Therefore, the Court of Appeals held that it was proper for the Review Board to award the employee unemployment insurance benefits. This newly decided appeal should not frighten employers. 

The Court did not find that the employer should not have terminated the employee for violating the attendance policy.  The court only found that the employee should receive unemployment insurance benefits following her termination.  Furthermore, this decision does not affect an employer’s ability to terminate an employee for violating an attendance policy. If employers have a no-fault attendance policy similar to the one in this appeal that has no exceptions for emergencies or illnesses not covered by the FMLA, the employer should be aware that an employee will most likely be awarded unemployment insurance benefits.  If the employer is not comfortable with this result, it may be time to revise their attendance policy. If you have questions about no-fault attendance policies, please contact a member of the Labor and Employment Practice Group at Bingham Greenebuam Doll.

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