CarlHR Case No.: 22-A-0037 is a classic example of misuse of AWOL termination statute by a public agency with regard to their employee. In that case, the employee was rightfully reinstated with backpay after being wrongfully AWOL separated. In the written decision overturning the termination, the ALJ noted that imposing unreasonably strict deadlines on the employee to provide medical documentation or additional medical documentation supporting their need for medical leave is “arbitrary and capricious” within the meaning of the applicable laws. Madonna v County of San Luis Obispo (1974) 39 Cal.App.3d 57.
This case is an important reminder that , if your manager tells you: “you must provide your medical note by no later than tomorrow, or else you will be AWOL fired” – this is likely to be “arbitrary and capricious”. The challenge to any such AWOL termination will be especially strong, if the employer was on notice of your medical condition previously based on your previous communications, and especially if you needed similar leave in the past for which you provided medical documentation previously. When an employer already possesses information demonstrating that the employee is suffering from a legitimate medical condition, it becomes more difficult to justify an AWOL separation based solely on a brief delay in providing updated paperwork.
Maintaining consistent communication with your employer and informing them of when you are able to provide the requested medical forms, and any reasons for delays (i.e. the doctor is not available until date x, etc.) can also be very helpful in proving that the employer acted unreasonably under the circumstances.
Medical providers do not always operate on an employer’s preferred timeline. Doctors may be unavailable, appointments may not be scheduled for several days, and medical offices often require additional time to prepare forms or certifications. A public employer’s refusal to take these well known realities into account can undermine the legality of an AWOL separation, and this information can be effectively used at a Skelly hearing or SPB Appeal hearing.