My husband and I run a small business, only one employee. Our sole employee has been with us for less than 2 months. Two weeks ago, he failed to report to work Monday morning. His phone was out of service, so Wednesday my husband drove to his house. He said he had been having some health issues but had failed to contact us. He told my husband he was scheduled for a colonoscopy out of town this past Monday, and he would return to work Tues. My husband told him we could work around his issues if he kept in touch, so the employee agreed to call Monday.
This week passed--no phone calls, and he failed to report to work at all this week. We have now lost 2 full weeks of work because of this and were forced to hire another employee. When can we presume the employee has quit?
My concern is that the employee will claim to have been fired and try to collect unemployment, when in reality he was not fired--we tried to work with him but he simply failed to report to work for two weeks straight with no contact. I didn't know if there was a time limit where we could assume he had quit after his absence.
I agree with the other attorneys. First, if you haven't already, you should definitely create an employee handbook that explains how many consecutive absences will be considered a resignation. That would take away any questions in the future around this matter. Secondly, as for unemployment, if the employee is awarded unemployment, it will likely be based on the provision of the statute that allows an employment to receive benefits if they are separated from employment due to a health condition. In the event that happens, it should be non-charging to you as the employer.
I would also recommend sending the employee a letter advising him that you have taken his absences as a resignation.
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Family Law Attorney
Generally yes. If an employee fails to report to work you can terminate the employee immediately. You can terminate the employee for no reason at all other than " your services are no longer needed." The law is on your side in this matter.
The information provided herein is general information and not designed to create a lawyer-client relationship, nor is it intended to be all-inclusive. You should seek counsel from an attorney about your particular situation to ensure your rights are protected.
I agree with Mr. Gross and will add that you need to draft an employee handbook...even if you only have 1 employee and don't foresee adding many more for a long time.
Most employee handbooks define 1 no show no call as a quit. Under the scenario you explained, it is unlikely that you would be charged for unemployment payments.