The Indiana Court of Appeals used a case before it as an opportunity to clarify how an employee's eligibility for unemployment benefits should be determined when the employee is discharged for attendance issues.

In John D. Giovanoni II v. Review Board of the Indiana Dept. of Workforce Development and Clarian Health Partners, Inc., No. 93A02-0806-EX-545, John Giovanoni appealed the Unemployment Insurance Review Board's denial of his application for unemployment benefits. He worked as a pharmacy technician for Clarian and had several absences from work due to a severe medical condition and once because of weather conditions. Clarian had a uniform attendance policy for all employees, which states an employee will be fired following eight violations of the attendance policy within a certain time frame.

Judges Terry Crone and Margret Robb reversed the decision, noting that the Court of Appeals has been split regarding the reasonableness of a no-fault attendance rule. After reviewing relevant caselaw, the majority determined Love v. Heritage House Convalescent Center, 463 N.E.2d 478, 482 (Ind. Ct. App. 1983), provided the sounder model for determining eligibility for unemployment benefits when the employee is fired for attendance issues. Love held that no-fault attendance rules that subject employees to discharge for excused and unexcused absences are per se unreasonable, and an employee can't receive unemployment benefits unless he can show good cause for why he was absent or tardy.

The majority also believed the risk of inconsistent results will be reduced if discharges based on attendance are analyzed under Section d(3), as was done in Love. In the instant case, the board analyzed the issue under Section d(2), which says discharge for just cause includes a knowing violation of a reasonable and uniformly enforced rule of an employer; Section d(3) includes unsatisfactory attendance, if the individual can't show good cause for absences or tardiness.

Using Section d(3) as a guide, the majority concluded Giovanoni established good cause for his absences and tardiness and reversed the board's decision.

Judge Elaine Brown dissented, saying it is up to the legislature to change the wording of a statute if it determines it needs to clarify that Section d(2) doesn't apply to attendance issues. Judge Brown would affirm the board's decision based on his violation of Section d(2), because Giovanoni failed to show that section exempted him from being fired.