Jack Nelson Jones Professional Association

October 1-7, 2018

Pride v. Dir., Dep’t of Workforce Servs., 2018 Ark. App. 407 (Sept. 12, 2018)

 

This case came before the Arkansas Court of Appeals on appeal from a decision of the Board of Review of the Arkansas Department of Workforce Services regarding the denial of unemployment benefits because of absenteeism. The Court of Appeal reversed and remanded.

 

Diane Pride appealed the Arkansas Board of Review’s decision to deny her claim for unemployment benefits. The Board found that Pride’s employer, Arkansas Children’s Hospital, had followed its written attendance policy when it terminated her employment for excessive tardiness. Pride had numerous medical conditions, including diabetes, and she attributed some late arrivals to her documented ill health, and the Board agreed with her finding that “most of her instances of tardiness were the result of her illnesses.” However, the Board found she was nonetheless disqualified for benefits because the hospital had a no-fault attendance policy. The Board cited to the statute’s provision that “In cases of discharge for absenteeism, the individual shall be disqualified for misconduct in connection with the work if the discharge was pursuant to the terms of a bona fide written attendance policy, regardless of whether the policy is a fault or no-fault policy.”

 

Pride argued in her petition to the Court of Appeals that her tardiness or absences were approved and cured by their qualification for protection under the federal Family Medical Leave Act (“FMLA”) which provides for unpaid leave for qualifying medical reasons and prohibits retaliation against an employee who is absent for such qualified reasons. The Court noted that the record below showed she had pointedly raised the FMLA as her defense throughout the administrative hearing, which the hospital did not attend. Additionally, the hearing officer had received as evidence “FMLA paperwork; two pages.” The FMLA paperwork referenced by the hearing officer appeared to be an employer provided “certification of health care provider” from Pride’s own physician. The certification stated that Pride’s medical conditions might cause periodic work absences and tardiness. Moreover, the hospital’s attendance policy stated in part that absences or instances of lateness covered by an employee’’ use of approved FMLA leave would not be considered as grounds for disciplinary action.

 

During the hearing, the officer also heard Pride say unequivocally that she believed FMLA excused some of her tardiness. And she said, among other things, that at least two hospital employees had told her that some of her tardiness was protected by the FMLA. Despite this evidence, the Board failed to make any factual findings related to Pride’s FMLA status. Nor did the Board discuss the impact of the FMLA or attempt to explain why the federal law did not insulate Pride from disqualification for benefits in this case.

 

Accordingly, the Court reversed the decision and remanded the case to the Board with directions to address Pride’s FMLA-based argument.