After several counseling memos directing employee to improve his attendance, the District terminated the employee based on excessive absences. However, in a “last chance” warning memo to the employee, the District erroneously misclassified some of the employee's absences as Workers Compensation when they were not; employee brought a claim that the District had terminated him in retaliation for taking Workers Compensation leave and benefits. The Workers Compensation Board Administrative Judge agreed, calling the last chance memo “unconscionable” and therefore, unenforceable. On appeal to the Workers Compensation review panel, the decision was reversed because there was no evidence that the District's reason for terminating the employee was because he received Workers Compensation benefits. The Panel noted that the District had issued several warnings to the employee to improve his attendance and that it is permissible to terminate an employee based on excessive absences, even when due to a Workers Compensation injury.
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