Many employers have no-fault attendance policies in which employees face termination after a set number of absences or attendance points, regardless of the reason for the absences. Employers often challenge unemployment compensation for employees terminated with a no-fault attendance policy, however, such employees remain eligible unless the employer can show just cause for the termination. Fault on the part of the employee remains an essential component of just cause, and as a result these employees may still be eligible for benefits if they were not at fault for their absences.
For example, it is well established that absenteeism caused by a bona fide illness is not just cause for discharge because such absences are beyond the control of the employee. Doctors notes are not always required to show this, although they certainly help. Courts have held that, absent a written policy that requires medical documentation, or a specific request from the employer, the employee is not required to provide a doctor's note to the employer.
FMLA protections can also come into play. Leave taken pursuant to the FMLA cannot be used against an employee in a no-fault attendance policy. Additionally, an employer cannot retaliate against an employee for using FMLA by terminating them. Employees in that situation will likely have to show that they exercised FMLA, the employer took action against them, and that action was because of their use of FMLA.
Employees should also remain eligible for unemployment compensation if their absence is due to certain family emergencies. Employers claim that such absences were resignations because Ohio Revised Code Section 4141.29(D)(2)(c) provides, that an employee is disqualified from unemployment benefits if "(c) Such individual quit work to marry or because of marital, parental, filial, or other domestic obligations." However, such absences may be protected by the FMLA. Additionally, it has been held that employees were not at fault, and therefore eligible for unemployment, when they were terminated for absences due to their child's asthma, to take a child to the hospital, to attend a funeral, or to help a parent who was assaulted.
To increase the probability of success in obtaining unemployment compensation after a termination for absenteeism, it may help to (a) obtain and review a copy of the employer's attendance policy, (b) obtain and submit verification of the reason for the absences, (c) focus on the last incident and whether you were at fault/control, and (d) apply for FMLA if eligible.