Denied unemployment for taking 4 sick days in one year
February 16, 2009 by Fred HosierPosted in: Dubious decisions, Here comes the judge, In this week's e-newsletter, Latest News & Views
How many sick days per year does your company’s benefits policy provide? A New Jersey case centers around an employee who took just four sick days.
Hospital technician Tracey Parks had taken three sick days in one year. Then she received written notice from the Cooper Health System in Camden, NJ, that she would be dismissed if she missed work again. Her absences were because either she or her asthmatic son was sick.
Then one morning, she had to call her supervisor to say she would be unable to come to work. Parks’ 4-year-old niece had been dropped off at her doorstep the night before because the child’s mother was homeless and couldn’t take care of her. No one else was available to care for the child.
Cooper fired her. She appealed a six-week unemployment disqualification which is imposed in cases of employee misconduct.
A state appeals court ruled Parks should not have been barred from collecting state unemployment benefits for the six weeks. The judge said all of Parks’ absences were justified by family emergencies.
What do you think of this case? Let us know in the Comments Box below.
Tags: fired, sick days, unemployment
February 16th, 2009 at 8:28 am
There just HAS to be more to this story. Four sick days and she was fired?
February 16th, 2009 at 9:06 am
Absolutely more to this story. Most hospitals have a very liberal PTO policy. Sounds like they were trying to make an example of someone.
February 16th, 2009 at 9:07 am
Absolutely more to this story. Sounds like someone was being made an example.
February 16th, 2009 at 7:44 pm
At our hospital, one unexcused absence beyond the employee’s annual 3 short-term-sick days is reason for progressive discipline. If she was already that far along in the discipline track and took one un-excused absence, next step would be “out-the-door”. Like most hospitals, we do have a very liberal PTO, however we are cracking down hard on folks who abuse this system.
February 20th, 2009 at 9:40 am
Instead of making people an “example” why don’t we grow up and start communicating effectively with one another? Why should one person pay for the incompetence of others? Accountability is important, but when that crosses over to making people examples, that just poor leadership.
February 20th, 2009 at 9:41 am
babysitting and your child being sick isn’t a sick day situation. it could be a personal day, a vacation day or an unpaid day, but sick is you being sick. i agree with the termination.
February 20th, 2009 at 10:02 am
What about Family Medical Leave? Sounds like the asthmatic son would have qualified.
February 20th, 2009 at 10:15 am
I concur. I’ve been in HR for 10 years and there is definitely more to this…probably no call no show, mixed with probably some other disciplinary warnings for tardiness or something.
February 20th, 2009 at 10:36 am
ARe you kidding me? Why does there have to be more to this story? I have seen some major ethical issues in my time. I have seen employees discriminated against because people just plainly dont like them. You all act as if this never happens. Quite naive dont you think???
February 20th, 2009 at 10:40 am
Settle down, Kristina. Of course it happens a lot. But good managers get all the facts before rushing to judgement.
February 20th, 2009 at 10:42 am
Agree there’s more to this story. Most hospital’s do have point systems for attendance but we also usually give you a lot of them before you’re fired. She was either in her first 90 days of employment, had other points for tardiness or was a no call/no show like Kevin noted.
I really have to wonder how long she was employed there – a serious asthma condition would generally qualify for intermittent FMLA and then the employee couldn’t be “penalized” for absences related to that. I’d be curious on what ALL the facts were on this case.
February 20th, 2009 at 10:50 am
Even if there is more to the story, sounds like this employee knew she was on thin ice. This did not come out of the blue. My company has one type of time off and we call it PTO (personal time off). Our employees can use it for whatever they want, sick days, mental health days (days at the beach), appointments, etc. Our only stipulation is that is needs prior approval – except of course for sick days and then we ask for a doctor’s note if there is no apparent illness being suffered by the employee. If they did not have grounds to fire her, they wouldn’t have. Most larger organization will really be careful about making sure they have documented an employee’s work history just to make sure they can not be accused of wrong doing.
February 20th, 2009 at 10:52 am
There may be more to this story, however, it would be possible to be terminated for excess absences if that is hospital policy. As the employer I would have no problem with Tracey receiving unemployment benefits as long as the hospital was relieved of any charges to the hospital’s unemployment account.
February 20th, 2009 at 10:55 am
My last comment was meant to be tongue-in-cheek but most (if not all) of the respondents DID NOT view my comments in that fashion. The purpose of that position was to demonstrate how ludicrous the laws are becoming. It has gotten to the point (the pendulum has certainly swung to far to the left – although the new administration is still trying to give more room to the left hand swing) that employers (specifically owners) have no control over how their operation is to exist, operate, move forward, grow and prosper.
HR managers need to begin to recognize that ever liberal stance taken by an ever intrusive government in the workplace will continue to force business out of the United States. The problem today is everyone looks at a situation in present time without looking to the future implications of their decisions. A perfect example is the left wing spending program that the media portrays as being well accepted by the general population. They’ve bankrupted our future in order to bring the socio-economic classes more in line with one another. The same is true with employment laws. Does anyone see any parallels between this and Marxism? Reading history over listening to sound bites would certainly open up some eyes.
Interestingly enough, we have extremely happy employees who want to work here. Why. Simple. We place progress over “INDIVIDUAL” rights. We emphasize that that they have the “right” to grow, prosper and succeed. Not the right to grow simply because they show up and certainly not because THE LEFT LEANING SOCIETY FEELS we all have the right to be EQUAL. Our policy here is simple and to the point – PRODUCE AND BE REWARED. Complain and you can look elsewhere to be happy and equal. By the way, in 14 years of steady growth we have only had to employees leave. One to pursue a different career path and one due to a geographic change.
It’s interesting to read the comments here by HR people (who by the way are most probably employees and NOT owners) who think the employee rights are above the employers rights. Let them start (risk) run (toil) and build (hard work) their own business and we’ll see if they agree with their own decisions in that environment. I very seriously doubt they will.
February 20th, 2009 at 11:04 am
Well Ray, I hate to tell you this but this person was a hospital tech which means she worked at a hospital. That means her employer probably had over 50 people on staff which means they are required (whether I like it or you like it or anyone else likes it) to abide by FMLA rules & regs amongst other things.
And being in the group of “HR People”, it is my JOB to consider the rights of the employer as well as the employee. If I ONLY considered my employer’s rights, I wouldn’t be doing my JOB in terms of reducing our risk for frivolous law suits! And when I have to look a “good” employee in the eye and tell them their job is being eliminated… don’t even try to tell me I don’t look out for the best interest of my employer. Us “HR People” are the ones you owners call on when you don’t want to do the dirty work!
February 20th, 2009 at 11:09 am
I am in HR at a well known corporation in my state and have seen 2 instances in the last year where people who had sick time available on the books were fired because it was deemed they had taken off too much in the past year for sick days. One lady had just come off of FMLA for surgery and another had was undergoing GI testing for stomach issues. Both had signed doctors’ statements and documents from emergency room/hospital stays. Still fired…is that right? I don’t think so. Some people abuse the system I know, but in certain cases like these that I’ve seen it seems the employee is unfairly discriminated against because they are out sick.
February 20th, 2009 at 11:29 am
LF, I couldn’t agree wit you more. HR managers always have to do the dirty work for owners!
February 20th, 2009 at 11:39 am
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4053-07T2
We conclude that the Appeal Tribunal erred in ruling that appellant’s absences from work constituted “misconduct” within the meaning of N.J.S.A. 43:21-5(b). All of appellant’s absences
were occasioned by family emergencies, the first three by her own illness and the illness of her son and the last one by her being unexpectedly placed in the position of having to care for her homeless four-year-old niece. Absences from work for such reasons do not constitute “deliberate violation[s] of the employer’s rules, . . . or . . . an intentional and substantial disregard . . . of the employee’s duties and obligations to the employer.” Beaunit Mills, supra, 43 N.J. Super. at 183.
…*Side note: although the employee did receive warnings regarding her absences, the courts found that those absences did not constitute misconduct and reversed the orginal ruling. It is also good to note that not one single representative from the employer appeared at the hearing to state their case; one would think that if an employer truly had a solid foundation to support their decisions and requests to deny her UI benefits – they would certainly have attended the hearing in some fashion….that is the “there is more to this story” part !
February 20th, 2009 at 11:46 am
http://www.judiciary.state.nj.us/opinions/a4053-07.pdf There it is. It makes sense. Also, Cooper barely even did anything, it sounds like, unless they just didn’t feel like paying a lawyer to file a brief. And Laura, it’d be hard to get willful misconduct determined on this case and still get relief from charges, like in PA it’d be hard to have a determination of benefits but get relief on such circumstances, usually there is some coinciding.
I think this whole thing is an HR blunder, the absences were justified (she only took one for herself) and to fire her as such. There must have been some major miscommunication or lack of any real communication.
February 20th, 2009 at 12:14 pm
They may be more to the story, but it may be the manager. I worked in fast food at one time, and one young lady’s grandmother called in for her because she was in the hospital with food poisening, and they were keeping her for two days. Our manager told her grandmother that if she did not show up for her shift that night, she was fired. No questions. She was not one who called in, but was a very dependable person who would fill in for anyone. He just felt noone should ever call in. The district manager stood up for him, and not her.
February 20th, 2009 at 12:20 pm
I worked for a hospital that gave us 12 sick days a year plus other paid time off. I was written up after just three days off within a year….I suffer from chronic migraines. I am NOT one to miss work unless its scheduled or I’m really sick. Needless to say, I was extrememly upset over being written up for a condition that at times I can’t control with medication.
So don’t always assume that there is “more to the story”. Sometimes there isn’t.
February 20th, 2009 at 12:47 pm
I still dont understand why some employers offer sick time and then get upset when employee actually get sick. Just do away with it, have a zero tolerance for absences and see what kind of employees you end up with.
LF, i agree with you, we in HR have to handle the mess some managers cause and try to keep the company in compliance.
February 20th, 2009 at 1:17 pm
Many times, employees with helath problems (or family members with health problems) are under a tremendous amount of stress. This stress can lead to behavior that appears to an employer as the employee as being a “problem”; forgetfulness, arguments with co-workers, decrease in personal hygeine, tardiness, etc. Most employers have EAP programs to help the employee cope and to communicate effectively with management.
Most terminations I have been involved with had one or both parties (the supervisor and/or the employee) who had taken the position that they were RIGHT and the termination or retention would be a validation of their “Rightness.” And normally, both parties have valid points to make. Neither party really wants to end up in court, yet they get stuck on what the LAW requires.
February 20th, 2009 at 1:33 pm
In Oregon the time she missed would be covered under this States family Leave protection act. As a parent I believe, as do the people of Oregon, that missing time because of a sick child should be protected leave.
February 20th, 2009 at 4:47 pm
Angel M. I completely agree with you. I am in the HR Dept for a Health company. We offer a very nice PTO package because since we are non-profit, our salaries are less to be desired. So we offer a great benefits and time off package. Yet, some of my managers and upper directors feel their employees are in abuse of taking their alloted days. Scheduled or not!! I have to consistantly tell them that if they offer this generous time off, they cant get upset if an employee takes the time. There are abusers and then there are people (like this woman) who take time as they need it. Very rarely. I think some of us forget what its like to be at the bottom. I wasnt always in HR. I worked my way to the top, but havent forgotten what it was like at the bottom of the chain. I once worked for a women who asked me once to leave my son with a neighbor or something so I could get to work. Want to hear what happened to her? Her new boyfriend whom she thought nothing about leaving her son with, started molesting her son!! There are really some people who should not be managers and some companies and owners who would rather do what they feel than what the law dictates. They feel its their company and they can decide. It truly is up to HR to try and balance the employer and employee. How would you owners feel if we just went along with what you said and then you got nailed in a lawsuit for 1 or 2 Million. Its been know to happen…
February 23rd, 2009 at 4:40 pm
If she was a truly excellent worker (beside missing 4 days in 1 year) which in a manufacturing job that is great attendance by the way! The Supervisor should have looked into this more in depth before getting rid of her. Now he has the costs of hiring and re-training another person to fill the position. Also the employee should and probably was informed of FMLA leave when she was hired, why didn’t she use that for her son? Even if she didn’t have the paperwork filled out for that, it will still look bad on the company if and when it goes to court…it always does! To get the most out of your employees you need to work with them more when it comes to their attendance…to a point.
She took 4 sick days in one year, if the company gives any sick days out, did some of these count against her? and if they did…why? We give 3 sick days out and you receive no points.
March 10th, 2009 at 11:10 am
I have been doing this for 40+years and have most likely seen it all. First, if there was more to this story then the employer had their day in court and the Judge did not agree. For a hospital or any medical facility to only allow 4 sick days a year is unrealistic. HELLO why are people in the hospital, they are sick and they pass those germs to others, so to have a sick policy that is less than corporate americas 10 days, is asking for problems. Secondly, she has a sickly child with a potential life threaten illness. Kids get sick and life happens, the employer was out of line if this is the only reason they took this action. If they had additional reason, then they should have producted the evidence to the Judge!
Supervisor needs to get trained or get the axe!
March 10th, 2009 at 12:30 pm
Our company has zero sick days so people come in sick because they don’t want to use vacation time.
June 1st, 2009 at 7:39 am
I have been in HR for over 15 years and what I have realized is that HR and reps are the DEVIL…If you stand up for something knowing that you and the company are wrong you are a lowlife..People nowadays have no accountability, mainly HR reps who must have taken courses in how to be an ass to do the things they do. Do we not realize that you only get one chance here on earth and your going to spend it as liar? People need to wake up, especially HR reps with the economy the way it is. Its not worth the measly salary that you are paid to act the way you do..I have since left HR and realized that that lifestyle and job are a joke and karma is a lot stronger..Be careful fellow HR reps, don’t be cocky as you all seem to be because Karma will get you in the end!