Acebedo v. Hy-Vee, Inc.

Dear Workers' Compensation Clients:

The Iowa Workers’ Compensation Commissioner recently issued an appeal decision that provides guidance on when temporary disability benefits can be suspended when a claimant refuses an offer of suitable work by abandoning his or her job. You are receiving this letter because we want you to be aware of how these types of cases are being analyzed by the Commissioner’s office. This is a positive trend in the law that is favorable to employers and insurance carriers.

In Iowa, temporary benefits can be suspended when an employee intentionally refuses an offer of suitable light duty work after an injury. Iowa Code § 85.33(3). However, a line of cases has developed that hold an employee’s misconduct or violation of a work rule resulting in their termination is ordinarily insufficient to suspend their temporary benefits unless the conduct is serious, the type of conduct that would cause any employer to terminate any employee on the first offense, and the type of conduct that would have a serious adverse impact on the employer. Examples of misconduct that did not meet this standard have included testing positive for marijuana on a post-accident drug screen (regardless of an employer’s zero-tolerance policy)[1], sleeping on the job,[2] taking confidential documents from work and throwing them away,[3] and putting hot glue on cardboard and placing it on a co-worker’s hand, resulting in a burn.[4] The agency typically awarded benefits in these situations by finding that the conduct was not sufficiently serious or by finding the employee did not act deliberately.

The Acebedo decision appears to show a departure from this high standard. In Acebedo v. Hy-Vee, Inc., File No. 5066051 (App. Feb. 24, 2020), the claimant sought FMLA leave so she could travel to Mexico to care for her ailing mother. Before her FMLA was approved, however, she left the country. The issue was whether the claimant refused an offer of suitable work by leaving the country without having first secured FMLA leave approval. The Commissioner held that the claimant’s “passive act of not showing up” to work was a deliberate, intentional act that warranted suspension of her benefits. Her actions resulted in three consecutive “no-call/no-show’s” and required her termination under the employer’s attendance policy. The Commissioner recognized that the claimant did not receive any of the employer’s telephone calls or letters advising her that her job was in jeopardy because she was out of the country. He also recognized that the claimant planned to return to work after her mother no longer needed her assistance. Nevertheless, he concluded it was the claimant’s “voluntary and deliberate decision to leave the country before her FMLA was approved” that ultimately led to her termination and a forfeiture of her temporary benefits.

I believe this case highlights the importance of the employer having a written attendance policy that is shared with all employees and consistently applied. It is also important for the employee to be notified in writing of the offer of light duty work. The written notice should specify the work to be performed and notify the employee that a refusal to accept the work will result in a suspension of their temporary benefits in accordance with Iowa Code section 85.33(3).

Our office is prepared to answer any questions you may have about this decision and any other issues related to workers’ compensation benefits in Iowa. Please do not hesitate to contact us if you have any questions.

Sincerely,

Charles E. Cutler