FMLA and unemployment
SanDee
9 Posts
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.
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
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.
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.
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!
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 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!
What was she thinking - surely she knew the company would be contacted regarding any UI claim?
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
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!