Ariz. Admin. Code § 6-3-5115

Current through Register Vol. 30, No. 45, November 8, 2024

Section R6-3-5115 - Absence (misconduct 15)

A. General (Misconduct 15.05)

1. Implicit in the work relationship is the duty of the employee to report for work and remain at work in accordance with the reasonable requirements of his employer. This duty is not absolute, but is qualified by circumstances relative to the situation of both employee and employer. In determining if a claimant's absence from work is a disregard of his employer's interest due regard must be accorded to the customs and conditions of work.

2. If it is customary for employees where the claimant worked to take a day off without pay, a claimant who does so and is discharged is not deemed to have been discharged for misconduct unless the circumstances indicate that he could reasonably have known that his employer would be injured by his absence.

3. When a claimant is discharged for not appearing at work on a day when he customarily does not work, his dismissal is generally for reasons other than misconduct.

4. An exception to the general rules of absence is the discharge of a claimant because of an absence due to incarceration for a first offense. Refer to R6-3-5115(E), "Absence due to incarceration."

B. Notice (Misconduct 15.1)

1. Generally, a claimant's failure to give proper notice of his absence from work in time to permit the employer to make such arrangements as he deems necessary to replace him is tantamount to misconduct connected with the work. However, inability to notify usually justifies a failure to give notice. If the claimant made all reasonable efforts to reach his employer, but could not, failure to give notice is not misconduct.

2. The practices of the employing establishment should be considered in determining what constitutes adequate notice. Absences for causes beyond the claimant's control may be misconduct if the facts establish that notice could have been given and the employer was inconvenienced, not because of the absence, but because of the lack of notice. A claimant's absence from work for causes beyond his control with proper notice at the earliest opportunity is not misconduct. In certain instances notice of absence is unnecessary or waived such as:

a. When the employer has independent knowledge of the claimant's inability to be at work; or

b. When it has been established by custom that notice is unnecessary; or

c. When a claimant is the recipient of a severe shock such as the death of a member of his family.

3. Discharge because of failure to provide notice of absence due to incarceration should be adjudicated in accordance with rule R6-3-5115(E).

C. Permission (Misconduct 15.15)

1. It is reasonable for employer(s) to require that their employees request permission to be absent from work when such absence may be anticipated. A prudent worker will normally request permission and will not take time off when his request is refused.

2. When a claimant is denied permission for an impending absence from work and is absent- despite the employer's refusal, the necessity for the absence and his employer's reason for not granting permission must be weighed. The claimant's separation from work under such circumstances would be considered misconduct connected with his work; unless

a. The employer has denied a legitimate leave request without valid reason; or

b. The claimant would suffer serious detriment if he did not take time off work; or

c. The claimant was absent for a compelling personal reason.

3. Failure of a claimant to request permission for an anticipated absence does not of itself constitute misconduct. Such cases should be evaluated in accordance with R6-3-5115(B), "Notice" and R6-3-5115(D), "Reasons for absence."

D. Reasons for absence (Misconduct 15.2)

1. A claimant who is discharged due to absences beyond his control such as illness, accident, unavoidable delay in transportation, urgent domestic responsibilities and the like is discharged for reasons other than misconduct. Even repeated absences for these causes are not deemed to be misconduct if the facts indicate the absence could not have been avoided. However, failure to give notice of such absences may constitute misconduct. Failure to give notice is discussed in R6-3-5115(B), "Notice."

2. Absence from work due to reasonably pressing domestic circumstances is not misconduct when proper notice is given. For example: serious illness or death of a close relative is deemed of such pressing circumstances as to justify the absence.

3. A claimant's discharge is considered to be for misconduct connected with his work when he is discharged because of an absence from work; when

a. He is absent for a capricious reason; or

b. He is absent for causes he does not substantiate, or gives no excuse for; or

c. He is absent from work due to intoxication.

E. Absence due to incarceration (Misconduct 15.25)

1. A discharge for absence due to incarceration is disqualifying when:

a. The claimant did not properly notify, or failed to make a reasonable effort to properly notify the employer of his absence; or

b. The evidence clearly indicates that the claimant could have avoided his incarceration by the payment of a fine; or

c. The claimant was incarcerated for a second time while working for his last employer; or

d. The claimant was confined for a period in excess of 24 hours, and the available evidence tends to establish that he committed the offense for which he was confined.

2. A claimant who is discharged because of an absence or failure to give notice due to incarceration is separated from work for a compelling personal reason not attributable to his employer when the separation is determined not to be misconduct under rule R6-3-5115(E)(1).

3. If a claimant was discharged because of the offense which caused his incarceration the determination should be based on rule R6-3-51490, "Violation of law".

Ariz. Admin. Code § R6-3-5115

Former Rule number Misconduct 15. - 15.25. Former Rule repealed, new Section R6-3-5115 adopted effective January 24, 1977 (Supp. 77-1). Amended effective February 15, 1978 (Supp. 78-1). Amended effective August 3, 1978 (Supp. 78-4). Amended subsection (E)(2) effective July 24, 1980 (Supp. 80-4).