Does your employer have a policy that after so many unexcused absents you run the risk of being fired? Often our clients must miss work because of their injuries in order to see doctors or are told that they cannot work because of their injuries. Employers will sometimes fire the injured worker because of the violation of this policy. As a consequence of this the injured worker is said to have voluntarily abandoned the workplace.
Voluntary abandonment of the workplace has been discussed in a previous article posted earlier this year, but here is a review just in case you missed that one; Voluntary abandonment of the work place is a rule that the courts use in order to terminate an injured worker’s temporary total compensation (TTC). Voluntary abandonment arises when a worker leaves his job at which he/she was injured for reasons not relates to the injury or otherwise removes himself/herself from the workforce. The reason is that when a claimant has voluntarily abandoned employment, there is no longer a loss of earnings (the basis of receiving TTC) and therefore, no justification for the continued payment of TTC. Just because the word voluntary is used to describe the rule doesn’t mean that the worker left because they wanted to, being fired from a job because of a violation of a written work rule or policy is considered to be a voluntary abandonment. The rationale is that the actions you took in order to violate that rule were voluntary.
This rule is broken down into 3 main factors that the court takes into consideration: 1) there was a violation of a written work rule or policy that clearly defined the prohibited conduct; 2) (the conduct) had been previously identified by the employer as a dischargeable offense; and 3) (the rule) was known or should have been known to the employee.
Speaking more to this violation of a written work rule or policy, the Supreme Court of Ohio has a set a precedent that many workers are not aware of. In State ex rel. McNabb v. Industrial Commission McNabb (2001), 92 Ohio St. 3d 559, McNabb, the injured worker, had his temporary total compensation terminated by the Industrial Commission due to a violation of a written work rule. The rule that McNabb had violated was that he was absent and/or late to work 15-20 times in a 6 month period and failed to call in to notify his employer that he would be either late or absent. The employer had verbally made it clear to all workers that failing to call in when they were going to be late or absent to work can lead to them being fired from their position. Seems pretty clear cut right?
The worker was absent/late an amazing 15-20 times in a six month period, so he should be fired and have his TTC terminated. Refer back to the first factor the Court takes into account when determining if a worker had abandoned the workplace due to a violation of a WRITTEN work rule or policy. Although the employer had a right to fire him he failed to put the rule in writing and readily available for all employees to observe, thus it did not satisfy the first factor that the work place rule or policy must be writing. The Court goes even further that because the rule was not in writing and it took McNabb being late or absent to work 15-20 times to get fired under the “strict” policy that the employer had in place the validity of the policy may have been diluted in McNabb’s mind. This doesn’t mean that McNabb gets to keep his job, but it does mean that his TTC cannot be terminated due to a voluntary abandonment of the workplace.
Always let your Columbus Workers’ Comp attorney here at Malek & Malek about any work place policies that your employer may have.