STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JENNIFER A YOUNG, Employee

NORTHERN LIGHTS HEALTH CARE CENTER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04202049EC


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

For purposes of clarifying the commission's decision rationale, the sixth paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section is deleted.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 32 of 2004, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed December 17, 2004
youngje . umd : 115 : 4  MC 605.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


On August 5, 2004, the employee learned that she had not accrued as much vacation time as she had expected, had taken eight hours of leave to which she was not entitled, and would have eight hours of pay deducted from a future paycheck as a result. The employee became angry, told three of her fellow CNA's that she was leaving, and punched out and left the work site without permission from or notice to management. After she had been gone 15 minutes, she telephoned the facility and told Carol Kent, Staff Consultant, that she had left and would be returning. The employee returned to the facility five or ten minutes later. She was not permitted to return to her duties, and was discharged at a meeting with management the following day.

The commission recently analyzed a somewhat similar fact situation in Widlake v. Crown Cork & Seal USA, Inc., UI Hearing No. 04402674OS. In Widlake, the employee, after notifying a co-worker, left the work site before completing four hours of his scheduled 12-hour shift without permission from or notice to management. As here, Widlake had received prior attendance warnings, but was not at the point in the employer's progressive discipline system where an additional absence would result in termination. The commission, based on the fact that Widlake was a 14-year employee who had not been shown to have left the work site without notice or permission before, was not on notice that his next attendance deficiency would result in his termination, and had not created a safety or quality issue by leaving early, decided that the employee had made an error in judgment but had not engaged in misconduct.

The critical distinction here is the fact that, in view of her direct patient care responsibilities, the employee created a potentially significant safety risk or quality of care issue when she abandoned her patients without notice to management. The commission has consistently held those who provide direct patient care in nursing homes to a very high standard due to the fragile and vulnerable nature of the population they serve. See, Opara v. Marian Franciscan Center, Inc., UI Hearing No. 02611358MW (LIRC May 30, 2003). Although the employee notified certain of her fellow CNA's that she was leaving, the record does not support a conclusion that the responsibility for caring for the employee's patients would automatically transfer to them in her absence. Although 15 minutes without notice, or 25 minutes of absence, does not seem very long, it could be a very significant period of time when the needs of a vulnerable patient population are considered. It should be noted that it is the fact that a resident or patient was exposed to the risk of harm as a result of the employee's actions that is significant, not whether actual harm came to such residents or patients. See, Schultz v. Marquardt Memorial Manor, Inc., UI Hearing No. 03004473JF (LIRC Feb. 10, 2004) (misconduct where employee left incapacitated elderly resident alone for two minutes in a bathtub); Opara, supra., (misconduct where certified nursing assistant discovered sleeping in room remote from location of patients for whom responsible). See, also, Wagner v. Superior of Wisconsin, Inc., UI Hearing No. 01200774EC (LIRC Aug. 29, 2001) (misconduct where safety risk created by employee who left work in middle of shift without permission or notice and without turning off machine); Raleigh v. UFE, Inc., UI Hearing No. 99200063HU (LIRC June 7, 1999)(misconduct where safety risk created by employee who left work in middle of shift without permission or notice and without turning off forklift).

The commission, as a result, affirms the administrative law judge's finding of misconduct, but deletes his conclusion that, consistent with the employer's progressive discipline system, the employee was on notice that her next attendance deficiency would result in termination. In July, the employee was placed on notice that three additional absences would result in her termination. The employer failed to show that she had any absences after this warning other than the one under consideration here, or that, under its work rules, leaving work in the middle of a shift is equivalent to three absences. Although the employee was not on notice prior to August 5 that her job would be in jeopardy for her next attendance deficiency, her actions of August 5 were sufficiently egregious to support a conclusion of misconduct.



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