From the Federal Register
We are also proposing to change the annual FEHB Program Open Season from the Monday of the second full workweek in November through the Monday of the second full workweek in December, to November 1st through November 30th of each year. We are also adding a new opportunity for eligible employees to enroll in the FEHB Program or to change enrollment from self only to self and family under the Children’s Health Insurance Program Reauthorization Act of 2009. Finally, we are proposing to allow FEHB plans to offer three options, without the requirement that one of the options be a high deductible health plan.
Change in Dates of Open Season
The current regulations provide for the FEHB Program Open Season to be held from the Monday of the second full workweek in November through the Monday of the second full workweek in December of each year. We are revising the regulations to change these dates to the month of November. Therefore, beginning in 2010, the Open Season dates will be November 1st through November 30th of each year. This will simplify the annual announcement of the time period for Open Season and allow agencies and employees to better plan for the enrollment opportunity since they will know well in advance when it will occur each year.
New Enrollment Opportunities
Public Law 111-3, the Children’s Health Insurance Program (CHIP) Reauthorization Act of 2009 (the Act), enacted on February 4, 2009, allows States to subsidize health insurance premium payments for certain low-income children who have access to qualified employer-sponsored health insurance coverage. FEHB-eligible enrollees who meet the criteria for child health assistance are eligible to receive State premium subsidy assistance payments to help them pay for their FEHB plan premiums. Current FEHB Program regulations already allow an eligible enrollee who loses coverage under the FEHB Program or another group health plan, including loss of eligibility or assistance under Medicaid or CHIP, to enroll or change enrollment from self only to self and family within the period beginning 31 days before and ending 60 days after the date of loss of coverage. The Act provides new opportunities for eligible employees to enroll in the FEHB Program or to change enrollment from self only to self and family when the employee or an eligible family member becomes eligible for premium assistance under CHIP. Employees must request the change in enrollment within 60 days after the date the employee or eligible family member is determined to be eligible for assistance. Employees may make these enrollment changes regardless of whether they are covered under premium conversion (pay premiums with pre-tax dollars).
DATES: OPM must receive comments on or before June 18, 2010.
CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD
(909) 987-XXXX
INLAND OFFICE OF APPEALS XXXX Arrow Rt, Bldg 19-A
PO BOX XXXX RANCHO CUCAMONGA CA 91729
GUILLERMO MOJARRO Claimant-Appellant
US POSTAL SERVICE c/o UCEXPRESS
Employer
Case No. XXXXXXX
Issue(s): 1256
Date Appeal Filed: 01/12/2010
EDO: XXXX BYB: 11/01/2009
Date and Place of Hearing(s):
(1) 04/12/2010 Rancho Cucamonga
Parties Appearing:
Claimant, Employer
DECISION
The decision in the above-captioned case appears on the following page(s).
XXXXXXXX XXXXXXXX, Administrative Law Judge
Case No.: XXXXXXX Inland Office of Appeals
CLT/PET: Guillermo Mojarro
Parties Appearing: Claimant. Employer
Parties Appearing by Written Statement: None
ISSUE STATEMENT
The claimant appealed from a determination disqualifying the claimant for unemployment benefits under Unemployment Insurance Code section 1256. The issue in this case is whether the claimant left the most recent employment voluntarily without good cause.
FINDINGS OF FACT
The claimant was employed as a Distribution Clerk. Level VI, for 22 years with the above-named employer earning $52,000 per year when his employee on October 30, 2009 under the following circumstances. The claimant resigned and accepted early retirement.
The claimant has a long, complicated history of grievances with his employer. The relevant portion of that history begins in February of 2007 when he was suspended for inappropriate conduct towards a co-employee. At the end of that brief suspension, the claimant informed the employer that he was not emotionally prepared to return to work. The claimant’s physician verified the claimant was unable to work because of his depression and anxiety. The claimant did not return to work before resigning on October 30, 2009 to accept his early retirement.
In February of 2009n the claimant requested to be returned to work. On March 26, 2009 the employer notified the claimant in writing that he was required to provide “objective and specific medical documentation sufficient to establish that you are able to perform the essential functions of your position, with or without accommodation…” before the employer could return him to employment. In response to this directive the claimant submitted a four-paragraph correspondence from his treating psychiatrist, Dr. Harry G. Lewis. The correspondence detailed the claimant’s condition, diagnosis and prognosis.
At the hearing the employer’s psychiatrist confirmed that this correspondence from Dr. Lewis “technically” satisfied the employer’s request for detailed medical documentation. Despite complying with the request, the employer did not return the claimant to his employment. Instead, it demanded that he submit to examination by the employer’s physicians. The claimant asserted his privacy rights and prevented the employer-appointed psychiatrist from sharing his
opinions with the employer. The employer refused to return the claimant to his position. The impasse was not resolved until the claimant became eligible for early retirement, which he then accepted.
REASON FOR DECISION
In Precedent Decision P-B-37 the appeals board held that in determining whether there has been a voluntary leaving or a discharge under section 1256 of the code it must first be determined who was the moving party in the separation. If the claimant left employment while continuing work was available, the claimant was the moving party. If the employer refused to permit the claimant to continue working, although the claimant was ready, willing and able to do so, the employer was the moving party.
An individual is disqualified for benefits if he or she has been discharged for misconduct connected with his or her most recent work. (Unemployment Insurance Code, section 1256.)
Absence caused by illness does not constitute misconduct. (Precedent Decision P-B-216.)
The department’s determination that the claimant was the moving party in this separation of employment is incorrect. The claimant had been out of work due to a psychiatric condition. The leave from work was approved by the employer. The claimant’s psychiatric issues were resolved according to the claimant’s treating physician, thereby opening the way for him to return to employment. The employer refused to permit the claimant to continue to work since it had not received a medical report from its own physician concerning the claimant’s medical condition. The claimant was ready willing and able to return to employment. Accordingly, the employer’s refusal to return the claimant to employment was the reason the claimant was forced to take early retirement, and thus the employer is the moving party in the separation.
The claimant was not discharged for misconduct connected with his most recent work. The absence from work was due to psychiatric medical condition. The employer approved the leave, and appropriately demanded medical verification that the claimant was capable of returning to his employment. According to the employer-appointed psychiatrist the claimant’s treating psychiatrist’s written release “technically” complied with the employer demand. Nevertheless, the employer refused to return the claimant to work.
The absence from work for a medical condition is not misconduct. The claimant was cleared medically by his own physician to the satisfaction of the employer’s written policy, and should have been returned to work. The employer’s refusal to return the claimant to work may have been for good cause. However, the decision not to return the claimant to his position was for reasons not amounting return the claimant to work may have been for good cause. However, the decision not to return the claimant to his position was for reasons not amounting to misconduct by the claimant. Accordingly, the claimant is not disqualified under code section 1256.
DECISION
The department’s determination is reversed. The claimant is not disqualified under code section 1256. and benefits are payable provided the claimant is otherwise eligible.
This is a good idea, It has been too busy in late Nov early Dec in our operation at the USPS that I don’t have the time to give the plans a decent reviewing