What does sleep apnea have to do with remembering to punch in and out for work?
The above is a reasonable question asked by an uninvolved observer based on what you have told us here.
And that is what you are going to have to show in a hearing to have any chance of approval. Willful misconduct means you acted in disregard for the employer's best interests, on purpose, knowing that what you did was considered misconduct, and that you knew your job was in jeopardy. In your case it would mean that you had been warned about the problem, were aware of the policy, and yet still reached the fatal number of eight times that you messed up the clocking in and out process.
Though you were aware of the requirement to punch in and out, and you had successfully performed the action many times over the duration of your employment there, you found it very difficult on several occasions (eight times) to get to the right place and do the right thing at the beginning or ending of your shift, even though you were aware that your job was in danger because of your repeated failures to do what was asked of you.
This is almost one where even if the employer chose not to participate in the hearings, this person might very well be denied benefits.
However, there are a few issues that might work in your favor in the hearing. As you've been told, right now, just appeal the decision, giving no arguments, just disagreeing and asking for a hearing. And very importantly, keep making the weekly certifications for benefits while you are waiting, even though you are not receiving checks. If you were to be approved in the hearing, you'd be back paid only for the weeks for which you had certified since filing your claim. Make work searches and participate in all job seeking activities as required by the unemployment system.
Do not, under any circumstances, restrict yourself as far as what work you can perform or days hours and shifts you could work based on your sleep apnea. If you are not fully released by your physician to work, you will not qualify for unemployment benefits anyway even if approved. Wear your mask, and your problems should be helped tremendously, that's what I found in my own case.
I struggle to see how sleep apnea diagnosed during the time when you were having these lapses of punching in or out is going to help much unless you can get your sleep apnea doctor to give you some sort of medical statement saying you needed an accommodation where you were not required to come in or leave work regularly or stating that your repeated failures to perform the required punches the same as other employees did were due to, I don't know, maybe "fuzzy thinking" caused by your sleep apnea?
In your hearing it would be important in this case to show that you did have a medical condition as documented by medical statements, that you had made a request to your employer for accommodations regarding the condition, that these accommodations did involve the clocking in process, and that your behavior was not willful misconduct, but rather a result of your condition, and of your employer's failure to understand and provide reasonable accommodations. In other words, was it reasonable to ask your employer to change their policy and give you extra chances to fix this situation or allow you more leeway in not following company procedures required of other workers?
In looking at problems based on sleep apnea there are two questions that need to be answered, those being
1. How do these limitations affect the employee and the employee’s job performance? and
2.What specific job tasks are problematic as a result of these limitations?
Were you having any other problems at work regarding any other aspect of your performance other than punching in or out? Were you falling asleep at your desk? Losing time staring off into space? Had you ever discussed any of the problems you may have been having with the employer and asked for their tolerance and cooperation as you dealt with the issues?
Were you working irregular shifts? This might help your arguments that an actual physical condition was the reason for your persistent failure to punch in correctly or at the correct time. Did you ever ask for a shift change or a change in your job to help alleviate the problem of clocking in late?
Also, each time there was an issue with your not being punched or clocked in on time, did you discuss this immediately with a supervisor, and expend an effort to correct the situation, what efforts did you make to correct your behavior and do this right, particularly when you had been warned that you were approaching the eight times limit?
We assume you were fully aware of the rule about eight clocking mistakes leading to termination. That's something you would certainly want to throw in there if you had NOT been aware of the policy or had received no warnings that your job was about to be terminated if you could not achieve mastery of the punching-in program.
In any case, set up an appeals hearing and try to get some documentation of your condition. Perhaps someone can help you come up with a fool proof argument that will win the case for you. Best wishes.
