At the heart of many unemployment compensation disputes is whether a former employee’s conduct amounted to “misconduct” or “job abandonment” so as to disqualify him or her from receiving benefits. Two recent Michigan Court of Appeals decisions make it more difficult for employers to establish misconduct and job abandonment — even where the former employee’s conduct violated the employer’s policies.

In Riccardi v. Oakland General Health System, the court held that “absences for good cause, however persistent, cannot constitute misconduct for purposes of denying unemployment benefits.” The employeeclaimant in Riccardi unquestionably exceeded the number of absences permitted under the employer’s no fault attendance policy, and had been progressively disciplined, but many of her absences were described as due to “illness, doctor visits, car trouble, or problems at home.” The employer discharged her and claimed that her persistent violation of the attendance policy constituted willful “misconduct” under the Act. The court disagreed and explained that although “excess absenteeism and tardiness for reasons” within the employee’s control constitute misconduct, absences for “good cause,” including “personal reasons or other reasons beyond [the] claimant’s control,” do not. Yet another sign of judicial dissatisfaction with no-fault attendance policies?

In Gent v. Pride Ambulance Company, the court held that an employee’s “refusal to work on the Sabbath designated by his or her religion” does not constitute job abandonment. The employee-claimant regularly worked on Saturdays for the first five months of her employment. She then suddenly claimed that she could no longer work on Saturdays because it was her Sabbath day. The employer discharged her when she failed to appear for work on a Saturday, and argued that her absence constituted job abandonment. The court disagreed, reasoning that the concept of job abandonment does not include an individual’s refusal to work on the Sabbath designated by his or her religion.

What do Riccardi and Gent teach employers? You should document the stated or otherwise apparent reasons for an employee’s absences and tardiness. While employers can discharge employees for excessive absenteeism and job abandonment, the underlying factual reasons for an employee’s failure to report for work will generally determine whether he or she is entitled to unemployment compensation benefits.

Lori L. Rogala

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