Oklahoma Board of Review Questions
Hello. My husband was put onto involuntary medical leave from his employer on August 10th, saying that he could only be placed back on the schedule by providing a full medical release with no restrictions whatsoever.
He filed for UI benefits and was initially denied on two points- nonseparation and availability for work.
He appealed this decision and had a telephone hearing. His manager was subpoenaed, as well as half the medical records we'd asked to be subpoenaed. Two offices were denied subpoena on the grounds that they would be functionally similar to those already subpoenaed by the court.
The hearing officer, after consideration, affirmed the nonseparation issue and overturned the availability for usual work issue, as medical records as well as company records showed that my husband, who has a pinched nerve caused by two herniated discs, had worked for two years at his employer under the same limitations.
In the appeal to the Oklahoma Board of Review, I included a precedential case I'd found online that stated (in a nutshell) that since the restrictions were not temporary because the Employee's condition is not expected to improve over time, the lack of scheduled hours creates a de facto separation situation.
I included the precedential case number on the appeal request. I also explained why I felt that the precedential case applied to my husband's case.
From all that I've read, I did everything as best I could (barring trained legal help). Given the information I've provided, can you estimate the likelihood of overturning the Hearing Officer's determination?
What about the probable time frame? The appeal was faxed the day we received the decision, well within the appeal time limit. I'm just curious as to how long the Board can take to review it.
Answering Questions About a Board Appeal
To tell you what I think the likelihood of the Oklahoma Board of Review reversing an unemployment hearing officer might be on the non-separation, I of course would first feel like I would need to read the initial determination and hearing decision and then ask you questions I might have about what actually happened, that your husband's employer felt they could force the medical leave on him back in August.
Simply put .. I still have questions about what happened and when, to think I know enough to say
whether your appeal to a board of review will work, or not. But i was refreshing to read that you had found a precedent to base your written argument on.
Generally speaking, I work from a base that says when an employee exhaust's FMLA, or personal leave for medical reasons, invoking their rights under the ADA can give the employee the additional time they need to fully recover, for the purpose of protecting their job just a bit longer.
(However, this recent court decision is about limiting the use of the ADA as an unreasonable extension of the FMLA leave law
Whether an employer is subject to complying with FMLA law, or not, an employee can bring proof that it was the employer responsible for a separation, often because the employing unit is just adverse to accommodating restrictions, for any amount of time, because working around restriction mean finding ways to deal with the medically imposed limitations on an employee who can no longer meet the essential function of the job they were hired to do. Medical documentation is what can effectively attribute fault to an employer for ending a job unreasonably, when the restricted employee was sanely, or reasonably, just trying to follow doctor's order, due to medical problems and issues reasonably interpreted as being beyond the employees control.
The catch 22 for an employer in this situation .. is that the employee was released to work .. which makes them "able and available" (in most cases and states) at least eligible to try to collect unemployment .. but I learned this scenario most often led to a legitimate, if temporary, lack of work claim .. which in a lot of states, can be interpreted to mean the employee is still attached to an employer, but temporarily unemployed .. with no other type of wage compensation coming in to wipe out a weekly benefits amount.
But there I go again .. speculating on facts about hour husbands case I don't know to be relevant, or fact.
When your husband filed his UI claim, had he exhausted FMLA leave yet, if that was the type of protected leave he was forcibly put on?
Depending how busy a board of review is .. I'll just defer to timeliness guidelines provided by DOLETA
timeliness guidelines provided by DOLETA for appeal authorities to be timely. Four to six weeks.