FMLA & Unemployment benefits

HR Ladies · July 2001

We have recently been faced with a problem between FMLA and Unemployment. Here's the scenero: An employee who played the system took FMLA until it was depleted. The employee did not return to work. The employee was terminated. Employee miraculously recovers the day after termination and signs up to draw unemployment. We responded with paperwork to unemployment office re: illness and FMLA job protection ended. The employee was turned down by unemployment office two times before another appeal granted them benefits. We are rethinking our termination process for those employees whose FMLA has expired. We can't get the employees to return to work because they want to be fired so they can draw unemployment. We were thinking of changing the employment status of those employees who never return from FMLA to a work only when needed temporary position and not terminating them until after a certain period. Has anyone else had this problem? How did you fix it?

Down_the_Middle · July 2001

Without knowing the state where you reside it's tough to be that precise, but......... once the FMLA expires and the employee is then terminated (presumably for failure to return following the expiration of an LOA), why not offer the individual, in writing, the chance to RTW b/4 you discharge them? By doing so, the employee who chooses to not return will be viewed as a voluntary quit and in most states will incur a disqualification for terminating. We've done this repeatedly and the U/C office then takes the position that the person had an opportunity to remain employed, chose not to and therefore did not receive u/comp benefits. We've had some luck managing these cases, either back to work or barring their chances of receiving u/comp benefits.

Gar · August 2001

Right on Down-the Middle! We've been doing that for more than a year and our state's (North Carolina) Unemployment Security Commission has exactly that view. "The claimant was offered employment and turned it down thereby disqualifying themself from benefits for the period of........" Case closed.

Margaret Morford · July 2001

I agree with what DTM says in that I would always invite good employees to return to work whan they have recovered. You ought to have a policy to bridge their service as an encouragement to get them back.

However, if this employee is the kind that rides the system, I would never want them back as they will just find another way to collect money from the company. (I see a Workers Comp back injury in their future.) I'd appeal the latest unemployment decision if you can. If not, let them colect unemployment and consider it cheap to have them gone!

Margaret Morford
theHRedge

WD · July 2001

I think it's time for unemployment benefits to return to what they were originally set-up for. I don't understand how terminated employees can obtain unemp benefits after they fail to return from LOA and they knew what the consequences would be for failing to do so. We even have them sign a form that explains this and the fact that they must request an extension if needed. I think employees should have to make a good faith effort to notify of intent or inability to return. Not just leave the employer "hanging" then file for unemployment when they are termed. Believe it or not benefits have been awarded to employees who have been very rude with customers (which everyone knows is a no-no in any service industry) and the employees knew that this type of behavior could result in termination.

felicia_matthews · August 2001

Instead of calling it a termination, call it resignation via job abandonment. Sometimes it is all in the semantics. I am a Dir of HR in CA, and even with the liberalness of our administrative law judges hearing UI cases, I have not encountered this situation. Upon exhaustion of leave time, I have sent out a letter to the employee indicating that their leave time has been fufilled and explaining that they have to reply by a certain date or it will be assumed they have elected to resign their position. And of course, I always send out these notifications via certified mail.

Good luck.

FMLA & Unemployment benefits

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