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Unemployment Insurance
Web Library Topic -
Tardiness or Absenteeism
Absent
Without Notice Due to Accident or Sudden Illness
Unauthorized Vacations / Failure to Return After Vacation
Excessive Tardiness or
Absenteeism
Absent Without Notice Due
to Accident or Sudden Illness
Statute
§ 8‑73‑108(4)(b)(I)
and (4)(b)(II), C.R.S.
2005
(4) An individual separated from a job shall be given a full award of
benefits if any of the following reasons and pertinent conditions
related thereto are determined by the division to have existed. The
determination of whether or not the separation from employment shall
result in a full award of benefits shall be the responsibility of the
division. The following reasons shall be considered, along with any
other factors that may be pertinent to such determination:
(b)(I) The health of the worker is such that the worker is separated
from his or her employment and must refrain from working for a period of
time that exceeds the greater of the employer's medical leave of absence
policy or the provisions of the federal “Family and Medical Leave Act of
1993”, if applicable, or the worker's health is such that the worker
must seek a new occupation, or the health of the worker or the worker's
spouse or dependent child is such that the worker must leave the
vicinity of the worker's employment; except that, if the health of the
worker or the worker's spouse or dependent child has caused the
separation from work, the worker, in order to be entitled to a full
award, must have complied with the following requirements: Informed the
worker's employer in writing, if the employer has posted or given actual
advance notice of this writing requirement, of the condition of the
worker's health or the health of the worker's spouse or dependent child
prior to separation from employment and allowed the employer the
opportunity to make reasonable accommodations for the worker's
condition; substantiated the cause by a competent written medical
statement issued by a licensed practicing physician prior to the date of
separation from employment when so requested by the employer prior to
the date of separation from employment or within a reasonable period
thereafter; submitted himself or herself or the worker's spouse or
dependent child to an examination by a licensed practicing physician
selected and paid by the interested employer when so requested by the
employer prior to the date of separation from employment or within a
reasonable period thereafter; or provided the division, when so
requested, with a written medical statement issued by a licensed
practicing physician. For purposes of providing the medical statement or
submitting to an examination for an employer, “a reasonable period
thereafter” shall include the time before adjudication by either a
deputy or referee of the division. An award of benefits pursuant to this
subparagraph (I) shall include benefits to a worker who, either
voluntarily or involuntarily, is separated from employment because of
pregnancy and who otherwise satisfies the requirements of this
subparagraph (I).
(II) In the event of an injury or sudden illness of the worker which
would preclude verbal or written notification of the employer prior to
such occurrence, the failure of the worker to notify the employer prior
to such occurrence will not in itself constitute a reason for the denial
of benefits if the worker has notified the employer at the earliest
practicable time after such occurrence. Such notice shall be given no
later than two working days following such occurrence unless the
worker's physician provides a written statement to the employer within
one week of the employer's request that the worker's condition made
giving such notice impracticable and substantiating the illness or
injury.
Cases
Pepsi-Cola Bottling v. Colorado Division of
Employment, 754 P.2d 1382 (Colo. App. 1988)
A claimant was taken to the hospital after drinking
alcohol and taking a tranquilizer. After being discharged from
the hospital in the early morning hours in a state of dull awareness,
the claimant went home and slept through
most of his shift without calling the employer. The court
upheld the determination that the claimant's failure to notify the
employer was not a volitional act, and thus was not at fault for his
termination.
Unauthorized Vacations /
Failing to Return After Vacation
Statute
§ 8‑73‑108(5)(e)(XVII), C.R.S.
2005
(5)(e) Subject to the maximum reduction consistent with federal law,
and insofar as consistent with interstate agreements, if a separation
from employment occurs for any of the following reasons, the employer
from whom such separation occurred shall not be charged for benefits
which are attributable to such employment and, because any payment of
benefits which are attributable to such employment out of the fund as
defined in section 8-70-103 (13) shall be deemed to have an adverse
effect on such employer's account in such fund, no payment of such
benefits shall be made from such fund:
(XVII) Taking unauthorized vacations or failing to return to work as
scheduled after an authorized vacation or other leave of absence unless
such failure to return to work was caused by circumstances which would
result in a full award under the provisions of this section.
Cases
Gandy v. Industrial Commission, 680 P.2d 1281 (Colo. App.
1983)
A claimant was terminated when he failed to respond to a letter
asking him to return to work. The claimant argued that he did
not timely receive the letter because he was on a hunting trip, but
was disqualified from the receipt of unemployment benefits because
the trip was not an authorized vacation.
Sands v. Industrial Claim Appeals Office, 801 P.2d 12,
(Colo. App. 1990)
The court upheld a disqualification for a claimant who was
discharged for failing to return to work after an authorized
vacation. The claimant contended that a specific illness
prevented her from returning to work as scheduled, but she had not
mentioned that reason prior to the hearing, and the court held that
the hearing officer properly excluded evidence relating to the
illness.
Excessive Tardiness or
Absenteeism
Statute
§ 8‑73‑108(5)(e)(XX), C.R.S.
2005
(5)(e) Subject to the maximum reduction consistent with federal law,
and insofar as consistent with interstate agreements, if a separation
from employment occurs for any of the following reasons, the employer
from whom such separation occurred shall not be charged for benefits
which are attributable to such employment and, because any payment of
benefits which are attributable to such employment out of the fund as
defined in section 8-70-103 (13) shall be deemed to have an adverse
effect on such employer's account in such fund, no payment of such
benefits shall be made from such fund:
(XX) For other reasons including, but not limited to, excessive
tardiness or absenteeism, sleeping or loafing on the job, or failure to
meet established job performance or other defined standards, unless such
failure is attributable to factors listed in paragraph (b) of subsection
(4) of this section.
Cases
Stevenson v.
Industrial Commission, 705 P.2d 1020 (Colo. App. 1985)
One absence, even if volitional, is not "excessive" within the
meaning of §8-73-108(5)(e)(XX).
Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987)
Whether a claimant violated the employer's attendance policy is a
factor to be considered, but that issue is separate and distinct from the issue of whether
the claimant is entitled to unemployment benefits under the statute.
Rather, the inquiry
should involve whether the claimant's absences were "excessive"
under the ordinary meaning of the term, and whether the claimant was
at fault for the absences.
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