by Sean Douthard

Florida law provides unemployment compensation for employees who lose their jobs through no fault of their own. An employee will be disqualified from receiving unemployment benefits if she is discharged for misconduct or voluntarily leaves her job without good cause attributable to the employer.

Recently, an employee was awarded benefits after voluntarily leaving her job to care for her ailing father without her employer's permission. A Florida appeals court ruled that taking an indefinite amount of time off to tend to a family emergency without the employer's permission or against its wishes is good cause to leave a job sufficient to justify unemployment benefits.

What happened

Fior Ramirez worked as a housekeeper for Remington Lodging & Hospitality, a hotel in Atlantic Beach. After learning that her father, who resided in the Dominican Republic, had suffered a stroke, Ramirez asked her manager for time off to be with him. The problem was, she couldn't say how long she would be gone or when she was planning to come back.

The manager, Katie Berkowski, claimed she told Ramirez that she wouldn't be able to give her a leave of absence. However, she allegedly offered Ramirez leave under the Family and Medical Leave Act (FMLA). Ramirez never followed up on the FMLA leave offer.

Two days later, Ramirez called Berkowski and told her that she was in the Dominican Republic. She explained that her brother bought her a plane ticket so she just left without letting Berkowski know. Her father died about a week after she arrived. The following week, she returned to the hotel to pick up her paycheck. At that point, Berkowski told her that she had abandoned her job.

Ramirez applied for but was denied unemployment benefits after it was determined that she quit her job for personal reasons that weren't attributable to her employer. An appeals referee affirmed that initial determination.

The appeals referee found that Ramirez had essentially asked for an indefinite amount of time off for a family emergency, and the employer's denial of her request couldn't be considered so unreasonable that it would cause an average able-bodied worker to quit. The appeals referee also noted that Ramirez didn't seek leave under the FMLA after being advised to do so. Because she quit without good cause attributable to her employer, she was denied unemployment benefits.

After the initial determination and the hearing before the appeals referee, the next step is a review by the unemployment appeals commission (or the Reemployment Assistance Appeals Commission, as it is now known). Ramirez appealed the referee's decision to the commission, which affirmed her disqualification from unemployment benefits.

The commission concluded that even if she had been constructively discharged rather than voluntarily leaving her job, the evidence showed that she would have been discharged for excessive absences without permission, which would amount to misconduct connected with work. Ramirez then filed an appeal with the 1st DCA.

DCA finds good cause to quit

In a split decision, the court held that Ramirez should be entitled to unemployment compensation. The court explained that there is a long- standing body of case law that excuses an employee's departure from work without the employer's permission or against its wishes when there is a bona fide family emergency.

Under Florida law, an employee is disqualified from unemployment benefits if she voluntarily leaves work without good cause attributable to the employer or was discharged for misconduct connected with work. The term "good cause" includes cause attributable to the employer that would compel a reasonable employee to cease working or cause attributable to an illness or disability requiring separation from work.

In this case, the court pointed out that when there is evidence of a genuine family emergency, an employee cannot be denied benefits because she voluntarily quit or committed misconduct since leaving work for such an emergency constitutes good cause rather than disregard of the employer's interests. The court held that Ramirez's father's stroke and death easily qualified as a family emergency. As a result, she had good cause to leave work to go see him.

The court also pointed out that the appeals referee's conclusion that Ramirez quit in part because she didn't seek leave under the FMLA didn't change the result. The court reasoned that there was no evidence to suggest Berkowski ever explained the FMLA to Ramirez or that Ramirez understood her rights under the law.

Berkowski's own testimony may have played a part in the court's reasoning. She testified that she should have responded to Ramirez's request for leave by telling her that she could take leave without pay under the FMLA. Ramirez v. Reemployment Assistance Appeals Commission, No. 1D12-5009 (Fla. 1st DCA, 11/26/13).

What to remember

If an employee seeks time off to tend to a family emergency, the first thing you should consider is FMLA leave if the employee is eligible for it. You should then take steps to ensure she understands the basic provisions of the Act. If an employee refuses or disregards FMLA leave, it's not completely unreasonable to assume that her expected absence for an indefinite amount of time is a terminable offense. After all, the employee is basically saying, "I'm not going to be coming into work for a while."

Prolonged absences may seem like misconduct sufficient to justify terminating an employee without having to worry about her drawing unemployment. However, as the court held in this case, refusing to allow an employee to take time off to tend to a family emergency gives her good cause to quit. If an employee has good cause for leaving her job attributable to the employer, she will be eligible for unemployment compensation, which will be taxed to the employer's account.

Sean Douthard  is from the Law and Mediation Offices of G. Thomas Harper, LLC.