O’Leary v. Unemployment Compensation Board of Review, No. 775 C.D. 2022 (Pa. Cmwlth. Ct. Aug. 7, 2023). The Commonwealth Court of Pennsylvania reversed the Unemployment Compensation Board of Review’s decision denying employee unemployment benefits after determining that there was no willful misconduct where claimant was terminated for an unexcused absence due to illness instead of his excessive pattern of absenteeism.

BACKGROUND

The Claimant was a full-time security guard at Luzerne County Community College (“LCCC”). Claimant had issues with attendance and tardiness throughout the duration of his employment with LCCC. In October 2018, Claimant received a warning about his attendance. In October 2019, Claimant again received a verbal warning about his attendance, after which Claimant requested to be transferred to the night shift which LCCC accommodated. Between October and November of 2019, Claimant was tardy or absent approximately ten times. In November 2019, Claimant received a written warning about his attendance.

In December 2019, while preparing to report for work for his shift, Claimant experienced a fast heart rate, dizziness, and collapsed on the floor. Claimant was incapacitated and unconscious for approximately three hours until Claimant’s father found him. Once Claimant became conscious, he answered a phone call from his supervisor. During that phone call, Claimant apologized for missing his shift due to having “an attack.” However, due to the previously described events, Claimant never formally called off from work. The following month, Claimant was discharged from his employment.

The Department of Labor and Industry found that Claimant was eligible for unemployment compensation benefits, a decision which LCCC appealed. Before the Unemployment Compensation Board of Review (“Board”), due to telephone connection problems, Claimant was unable to attend the telephonic hearing. Based on LCCC’s testimony alone, the Board found that Claimant was ineligible for benefits. However, a second telephonic hearing was subsequently held to permit Claimant to testify. After the second hearing, the Board found that Claimant did not have a good cause for his absence from the first hearing and affirmed the earlier decision of the Board. Claimant subsequently appealed and the trial court vacated the Board’s decision and remanded it for consideration of the merits of the case. On remand, the Board determined that Claimant was ineligible for unemployment compensation benefits because Claimant had a pattern of tardiness and absenteeism, which rose to a level of misconduct. Claimant subsequently appealed the Board’s decision to the Commonwealth Court of Pennsylvania which reversed the Board and determined the Claimant to be eligible for unemployment compensation.

DISCUSSION

Section 402(e) of the Unemployment Compensation Law provides that an employee is ineligible for compensation for any week in which his unemployment is due to his discharge from work for willful misconduct connected with his work. 43 P.S. § 802(e).  Absenteeism, taken alone, does not generally amount to willful misconduct. Vargas v. Unemployment Comp. Bd. of Rev., 486 A.2d 1050, 1051 (Pa. Commw. Ct. 1985). An additional element, such as the lack of good cause for an absence, is necessary. Runkle v. Unemployment Comp. Bd. of Rev., 521 A.2d 530, 531 (Pa. Commw, Ct. 1987). An absence due to illness constitutes good cause and does not constitute willful misconduct. Runkle, 521 A.2d at 531. However, excessive absenteeism may, in some circumstances, constitute willful misconduct. Grand Sport Auto Body v. Unemployment Compensation Board of Review, 55 A.3d 186, 190 (Pa. Commw. Ct. 2012) (en banc). 

In its analysis, the Commonwealth Court relied heavily on its 2012 decision in Grand Sport Auto Body. In Grand Sport Auto Body, the Court held that the claimant was properly denied unemployment compensation benefits because his history of absenteeism and tardiness rose to the level of willful misconduct despite the fact that the claimant’s last absence before discharge was justified. The Court placed significant weight on the fact that the Board in Grand Sport Auto Body did not find that the employer discharged the claimant for his final absence, which was excused. Rather, it found that the claimant was discharged in that case based on his history of absenteeism and tardiness. The Court contrasted the facts of the instant case from that of Grand Sport Auto Body, noting that in the instant case, there did not seem to be a pattern of unexcused tardiness and absenteeism after the Clamant received a written warning in November 2019, but prior to the Claimant’s last scheduled day of work in December of 2019, which he missed due to illness. There was also testimony from the LCCC Director of Human Resources confirming that the basis for Claimant’s termination was his December 2019 absence. Accordingly, the Court determined that because it was the December 2019 event that precipitated Claimant’s termination rather than Claimant’s excessive absenteeism, Claimant should not be denied unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law. Accordingly, the Commonwealth Court reversed the decision of the Board.

PRACTICAL ADVICE

Although the employer in this matter previously warned the employee concerning his pattern of absenteeism, its decision to terminate the employee for an absence caused by illness led to the conclusion that the employee had not engaged in willful misconduct for purposes of unemployment compensation eligibility. Given the employee’s history of absenteeism and receipt of prior warnings, had the employer relied upon an absence of the employee precipitated by reasons other than illness, the discharge likely could have been characterized as employee misconduct.