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Oklahoma Board of Review Questions

by Jennifer
(Oklahoma )

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.

Thank you.

Answering Questions About a Board Appeal

Hello Jennifer,

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 DOLETAtimeliness guidelines provided by DOLETA for appeal authorities to be timely. Four to six weeks.

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Oct 18, 2017
It does for me too.. flies in the face of how I learned unemployment works
by: Chris

It almost sounds as if the hearing officer might of expressed a personal bias that an employer has a sort of right to demand an employee have surgery as a way to alter the terms and condition of employment, after the facts establish the employer had established a two year long pattern of accommodation for your husband's restriction that literally was enough to alter the essential functions of his job.

FMLA violation complaint .. maybe?

I don't really know a definitive answer to give you Jennifer, but I hope your appeal flies .. because I'd be damned if I'd sit still for an employer, basically forcing me to take medical leave to have back surgery, even if disability insurance pay was an option.

Did the employer provide the "approved medical leave" paperwork at the hearing? And was that leave covered under FMLA, subject to the guidelines?

If so, and you don't win this appeal because the board affirms there was no job sep to adjudicate, it doesn't mean your husband won't qualify for benefits if he isn't released without restrictions at the end date of his approved medical leave .. which by my estimation would be 12 weeks from Aug 10 .. right?

PS I'm sure you've already read the FMLA guidelines I linked to, but I include these links for others who might also have similar questions concerning medical leaves.

Oct 18, 2017
by: Jen (OP)

Lack of work. As he has not quit nor been fired, it was the only truthful option.

There was no precedent listed in the Hearing Officer's decision; it merely says that since he's on a medical leave of absence pending a full release to work he's still job-attached, no separation has occurred.

Which makes no sense and, since I got REALLY bored and read the Oklahoma Precedential Manual last night, flies in the face of established precedent.

Oct 18, 2017
But what was the H.O's finding that you're appealing his/her reasoning?
by: Chris

I understand why the hearing officer would modify and reverse the part of the initial determination finding for the A&A issue, but I still don't understand what basis (H.O's usually cite a precedent for their findings as well) used to support a finding, or affirmation there is no sep issue to use this precedent case to relate to the the facts now on the record as established by your husband or you, at the hearing.

Now my question to speculate about is what sep option was chosen by you, or your husband when applying. Was it a lack of work, discharge, or voluntary quit?

Oct 18, 2017
by: Jennifer (OP)

My husband never asked to be placed on leave; his manager, after my husband called in to work stating he was experiencing pain above the norm, said that he could not return because "I (the Manager) can't do this anymore, you (my husband) need a release with no restrictions before you can come back".

My husband reminded his manager that, short of surgery, he could not get such a release and that he needs his job.

The manager never directly states that it was FMLA, nor would the office manager, but they did attempt to call it an "approved medical leave" to the Review Officer. In the letter written to the initial review officer and during the telephone hearing, my husband made sure to point out that the leave was not requested by him but instead shoved on him despite asking repeatedly for hours and time at work.

I suppose that the fact that my husband's manager was caught lying under direct questioning is immaterial...

The initial determination before any appeals challenged my husband's ability to do his usual work and stated that he was not separated from work, so he was not unemployed.

We successfully argued the ability issue and are now appealing the separation.

He has never used his FMLA. The company SHOULD be subject to the law, but it's an odd situation that could fall into a loophole. The place he works at was bought out by another company BUT retained its own separate payroll department, name, and pay schedule, which could be argued to create a separate "company" (and that totally would not surprise me as the owner is ten pounds of poo in a two pound bag).

This was the letter I wrote to the BoP (identifying information removed)

I, , hereby request an appeal to the Board of Review on the issue of separation from work for compelling family circumstances, Section 2-210 of the Oklahoma Employment Security Act.

I submit that this falls under the same circumstances as the precedential case listed under Docket No 16-AT-08299-BR in that my restrictions have been in place for two years and are not temporary, but are permanent in nature. Additionally, due to my employer demanding a full release that cannot be provided due to my disability, I am in effect separated from employment. Considering that I worked at my employer for two years under the exact same restrictions I am under at the present time, I was performing my usual type of work until the Restaurant Manager decided I required a full release that the Manager is aware that I cannot obtain. The Employer is unwilling or unable to accommodate these permanent restrictions.

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