FMLA and unemployment

We are a small health care organization and recently one of our ee called in one day and said the doctor told her that she needed one day of bedrest and the next day would have a hysterectomy. There was no more info out of her and, in fact, administration wasn't even notified so we could start the FMLA process. About a month later we received notice that the ee had filed for unemployment as she was permanently laid off for medical reasons. She was still on our payroll including benefits and vacation time and personal time off was paid (which--pto--we don't pay if the ee terminates.

My question is: Can someone collect unemployment while on FMLA? We are appealing the judgment but I would like to have an idea of my rights and responsibilities.

Comments

  • 15 Comments sorted by Votes Date Added
  • If I remember correctly, to get unemployment you must be ready, willing, and able to obtain other work. Having a medical disability would disqualify. I am not the expert, but that is my opinion.
  • Thanks so much! I just needed someone to remind me of the obvious! I appreciate your note and will proceed as if I had common sense! SanDee
  • A claimant in any state who is unable to work for medical reasons is medically disqualified from drawing a claim. But, it stands to reason that the claims folks must have this piece of information. What judgement are you appealing? In order for a determination of eligibility to have been reached, either somebody at your company concurred with the layoff statement of the claimant, or nobody responded at all.

    Your right is to be heard on appeal, if you appeal within the timeframe given to you. Your responsibility to your employer is to attend the hearing and roll out the facts that show she was not laid off but that she was unavailable for work due to medical reasons.
  • Actually the Appeal comes from us--stating that the ee had never resigned and we continued to pay her benefits--including personal time off. The ee denies that she ever applied for unemployment--said that she put her social security number in the "Job Seeking" site on the Workforce Web Page. The Workforce Commission had notified us that she was eligible for unemployment which was the first notice for us. We were somewhat surprized to say the least. Now the ee wants to stop the action and come back to work--we're denying her return to work until the appeal is resolved.
  • Good morning.

    Why would you deny her return pending the unemployment appeal? Does that put you at risk of a retaliation claim (for filing unemployment or trying to) which may have merit even if the original unemployment claim does not (I'm paralleling to any other type of retl claim). Maybe it's wiser to let her return (assuming she has been medically released to the essential functions of her ob) and sort out the unemployment claim. It seems like it puts you in a better position to quickly resolve the claim if she's back at work, rather than still out.

    My two cents.
  • My initial response would be to agree with zlp. You really don't have a way of knowing if your employee is being fully honest with you, and you should act on what you know in a fair way. Maybe I'm just being cynical, but I can't believe the unemployment claim self initiated. You haven't terminated your employee, and you have no record of a resignation. You have knowledge of a potential FMLA issue. It sounds like you have determined that your employee has FMLA protection, so you've extended the protection. Your employee now is ready to return to work. Return the employee to work and ask for the medical certification for FMLA purposes. If there is no medical certification, act accordingly. As a separate issue, attempt to resolve the U/I issue, and having the employee actively working again may just be a plus for your organization. In the meantime, get an accurate account (maybe a written statement) from the employee describing the actions that initiated the claim, and appeal the decision you have. Part of the appeals process means that you will have access to information provided by the employee at the time the claim was initiated.

    What is reported in prior posts about U/I benefits payments depending on an individual's readiness and willingness to work is a truth, but an idealism. Our experience (in Florida) is that if you get the determination reversed, you'll be among the fortunate few. FMLA doesn't seem to be safeguard when the issue is unemployment in Florida. Reduction of hours seems to carry more weight in the claims determination process. Whether statements made by those filing for unemployment are valid and honest doesn't seem to be addressed with nearly as much scrutiny as an employer's response/defense. The interpretation that has been explained to me is that "through no fault of the employee, the employee is unable to work," which translates to payment of U/I benefits. Whenever I'm confronted with what I think is another unfairly weighted decision in favor of an employee/ex-employee (and I just had another one yesterday), I always return to the same question: Just what is the ability or skill level of the U/I worker making the determination?

    As an aside, the one for us yesterday was a voluntary resignation that was part of a W/C settlement agreement. Through state mediation, we made an offer, and the employee (with legal representation) accepted the offer, knowing that part of the agreement would be resignation with unfavorable rehirability status. The employee promptly filed for unemployment, claiming inability to work due to medical condition, and has been given a favorable award decision. We received our notice yesterday. The part of this one that really bothers me is that as part of the settlement agreement, we have a general waiver and release. In a preliminary answer yesterday afternoon, our legal representation (who penned the agreement) is telling us that unemployment may be exempted from the release agreement.

    I'm sure someone somewhere thinks that justice has been served. I fail to see it at the moment!
  • Wow, the works are really bolloxed up! Lots of times, my intuition can guide me to an answer - like this example with FML and Unemployment, one would think that since unemployment is for those that are ready, willing and able to work (OK, so I am naive); and since FML is only in effect for the 12 weeks an employee is unable to work medically; and since the EE can return to work at the company as soon as they are able - it seems intuitively obvious that unemployment just would not apply. Back in the day, one of the employer's defenses was to indicate the company had a job just waiting for the worker, so send them back and don't pay them unemployment, the company needs them.

    Apparently the beaurocracy has struck again and somehow the unemployment system has become a broader socialistic safety net....I must stop now, or the evil cynical twin will take over!
  • I think your twin has been in my office this morning!
  • Still Dazed makes a great point: Unemployment Claims do not 'self initiate'. I know some systems are magical, but knowing what I do about Unemployment Insurance systems in 50 states, I agree that the claim didn't just pop out of the system after the employee made an inquiry on a Job Service Network. How do you say Bu** Sh**?
  • The UI Commission would certainly have a record of the employee filing a claim. The employee now has been caught with her pants down knowing the UI Commission has been informed that she is still on the payroll and receiving compensation. This is fraud. She is now trying to weasel out of this so that she can come back to work for you.

    I don't see terminating her would be "retaliation" for filing a UI claim since this person lied and wasn't even eligible for benefits in the first place. Of course, I think the first inclination would be to boot her out.

    If a cooler head prevails, I'd let her return to work....maybe she will be a little wiser, but I'd sure keep my eye on her!
  • It would be an interesting test to see which would prevail if you terminated her for filing a fraudulent unemployment claim while she is still on FML.

    What was she thinking - surely she knew the company would be contacted regarding any UI claim?
  • If your employee told you they were having a hysterectomy, that would mean you were placed on notice for FML. It should be up to you to pick up the ball and "run with it" from that point on getting the information from her to docuement this.
    As far as unemployment, in GA you do have to be ready willing and able (seeking) work. So if she isn't or isn't able, she shouldn't qualify and you should notify state that she is currently employed with you and on FML. You don't know why she has applied for unemmployment. (Get some documentation that on leave and that disabled).
    However, an employee can be on FML and still be employed elsewere (or seeking employment) if they can't do you job, but could do other type of work.
    You have several issues here. I think you need to break them down and address individually.
    E Wart
  • It sounds like everyone else has already answered the questions, so ready for some fun? I just recently had an employee quit because she said she had arthritis and couldn't do the job any more. She did tell me she had arthritis - on her way out the door - but she didn't give me an opportunity to see if there was something that I could arrange for her to do instead, she just wanted to quit (hasn't been here long enough to qualify for FMLA). On her way out the door she wanted to make sure that when she filed for unemployment, I wouldn't appeal it. 8-} I told her that I would appeal it because she's quiting her job. Guess what? In WA state, she qualifies for UI because her medical condition (which she backed up with a doctor's note to UI - funny she didn't give me a copy) forced her to quit her job and therefore, the quit is for "good cause". The decision reads, and I quote, "Based on the information you provided to us (the doctor's note), you had good reason to quit your job." Benefits are a go - but wait! The doctor also said in his letter that her arthritis is so bad, she can't do anything. So in a separate decision letter, UI told her that although qualified for UI, she can't receive benefits because she's not "able" to work. Weird, but wonderful. Medical conditions can qualify a person for UI, but if they are not ready, willing and able to find or attain other work, they can't receive the benefits they are qualified to have.
  • Your situation is similar to what we've seen in Florida as well. Unemployment is a strange thing. I think it's taken on a life all it's own, has become a primary factor in keeping an economy stimulated, or is being used as a training ground or destination point for liberal sympathetics. (No real offense intended to liberals or sympathetics. I get stricken with both characteristics occasionally.) Maybe we are watching a huge experiment in action to test whether unemployment can replace social security eventually! If that were true, I might begin to see some logic in some of the process.

    I think I referenced in my prior post the latest, greatest crisis on that given day, a worker's comp settlement issue that had expanded to include unemployment. As of that date, our FT employee had been released to sedentary duties after a work related injury (soft tissue back strain, no disk bulges or ruptures were found), we were accomodating the restrictions and dedicating countless hours to manage a very uncooperative worker, with all parties involved aware that the case was in litigation and moving toward settlement, which would include lump sum payment, attorney fees, resignation w/o potential for rehire, and general waiver/release from future liabilities related and unrelated to W/C. Three days before the mediation date, the employee submitted written resignation claiming inability to perform job duties after injury and presented the resignation letter with a verbal message expressing an intent to return to school for GED. With legal advice from W/C, we accepted the resignation immediately to get the worker out of the workplace (in an effort to save some coworker morale) and paid the worker for accrued PTO (about 6 days). The worker, who couldn't seem to make it to work two days in a row due to pain, promptly made it to the nearest unemployment office and filed, and has been awarded benefits. The worker also applied for PT work elsewhere for the same type of job held with us, so for all intents and purposes is available for work. Unemployment in Florida is not a waivable right and can't be covered by the general waiver in the W/C settlement (we have since learned). We have appealed, but legal counsel is not optimistic that we'll get the decision reversed. Our only hope is that the verbal message about returning to school will be considered, even though we provided that information in our initial response and it wasn't given weight.

    I'm not real optimistic based on prior experience with involuntary termination after an aggressive coworker dispute in the workplace. We completed an in-house investigation, found evidence that the dispute occurred and accelerated to a physical level (witnesses), had a confession from the aggressive employee, and promptly terminated the aggressive employee for misconduct. The employee filed for unemployment. We won a favorable decision based on the misconduct theory. The employee appealed and won a reversal of the decision because we failed to bring the victim coworker into the appeals hearing to testify. In the absence of testimony from the victim, all evidence/info turned up in our investigation (including the confession) was ruled hearsay and disqualified. The result was that the aggressive ex-employee was essentially unchallenged in the appeal, and in the absence of a valid challenge, won benefits.

    The only thing that keeps me from dwelling on the above issues so long that frustration takes root is that every day seems to bring a new crisis. Unless I dwell on the above, they seem to pale in the blur of more recent issues.

    I guess that's a day in the life of an HR director!


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