If an employee fails to fulfill some of the fundamental requirements and duties of their job and they are terminated for those deficiencies, shouldn’t that be enough to constitute voluntary abandonment? In order for an employment discharge to qualify as voluntary abandonment, the law requires proof that: (1) there is a written work rule that clearly defines the alleged misconduct; (2) the work rule identifies the misconduct as a dischargeable offense and; (3) it was known, or should have been known, to the employee that a violation of such rule would lead to their termination. As a result, employers have been able to use the defense only when they can provide evidence of a written work rule that also lays out the consequences of the violation. Many employers, however, feel that a strict interpretation or application of the voluntary abandonment defense is unfair when the alleged violation is obvious and so severe that there should be no need for a specific written warning of the consequences.
Such is the situation in the case of State ex rel. Robinson v. Indus. Comm., 2014-Ohio-546. In Robinson, the claimant was a licensed practical nurse working at a long term care facility. At the time of her hire, she was provided a written job description that set forth in detail her job duties and responsibilities. She also received a copy of the employee handbook which laid out the basis for discipline and possible termination. Ms. Robinson was disciplined on several occasions for poor patient care and at one point was provided with a written warning. She acknowledged in writing that she had been warned that any future violations would result in her termination. Within a couple months of this warning, Ms. Robinson suffered an injury at work. She remained on the job and continued to work in a light duty position after seeking treatment. However, just five days after her injury, she had an encounter with a State agency inspector. The State surveyor reported that Ms. Robinson had failed to perform several tasks in accordance with State regulations in her care of several patients. As a result of this finding, a decision was made the next day to fire Ms. Robinson. Unfortunately, Ms. Robinson was not scheduled to work for the next couple of days. Her supervisor tried to call her on the phone but was not able to reach her until three days later. Her supervisor asked that Ms. Robinson come in to work so that they could talk but she refused. A letter was then sent to Ms. Robinson informing her of her termination.
In the meantime, Ms. Robinson visited a clinic for treatment and prior to receiving the letter of termination, she obtained a certification from her physician that she was temporarily disabled from all employment, including any light duty jobs performed after the date of injury. Ms. Robinson then sought temporary disability benefits after her termination. The Commission denied her request based upon a finding that she had voluntarily abandoned her job when she engaged in misconduct that led to her termination.
Ms. Robinson then filed a mandamus action with the Court challenging her denial of benefits. Ms. Robinson raised two main arguments. First, she argued that her employer did not satisfy Ohio law because it did not identify a written work rule that clearly defined the alleged misconduct. The Court rejected her request for relief. While there were no specific written work rules that dealt with the particular violations identified by the State surveyor, the Court found that there was a written warning given to Ms. Robinson just several months before her termination warning that any further misconduct could lead to her discharge. She signed that warning acknowledging that her violation of another workplace rule would result in her termination.
Second, Ms. Robinson argued that she was not terminated until after she was disabled, and therefore, she did not voluntarily abandon her job prior to her period of disability. The Court, however, agreed with the Commission and found that even though Ms. Robinson did not receive her letter of termination until she had been disabled by her doctor, the decision to terminate her had been made several weeks before that. It was only because of Ms. Robinson’s deliberate efforts to avoid a meeting with her employer that she did not receive the notice of the decision to terminate her employment.
The Robinson case provides some additional ammunition for employers who want to challenge a claimant’s eligibility for temporary total disability benefits based upon a recent termination. Even if the employer does not have a written work rule that addresses the situation that leads to the termination, if there has been a written warning provided to the employee about misconduct in general prior to that incident and the written warning confirms that any additional misconduct could lead to their termination, then sufficient evidence exists to support a voluntary abandonment defense. Also, the date of receipt of the decision of termination is not the key date for determining when the termination was effective. Instead, it is the date of the decision by the employer that determines the end of the employment relationship. Employers should pay close attention to the Robinson decision. Any time a written warning is provided to an employee about their conduct, the written warning should contain specific language about the alleged violation and about the consequences of any future work rule violations. The written warning can then serve as a basis for a later termination and can be used to block future benefits.