I have been doing HR for a small company for about 9 years now.  I have only had three employees request FMLA the entire time I have worked here.  I am currently in a situation that is so completely frustrating I could explode, and I can't seem to find an explanation anywhere!  One of our employees was involved in a car accident back in Nov. 2009.  Her injuries prevented her from returning to work (she is a nursing assistant in an assisted living home for the elderly).  The employee formally requested her 12 weeks of FMLA leave beginning Nov. 19, 2009.  She provided me with monthly notes from her doctor stating she was unable to return to work.  Although her FMLA protection was exhausted around Feb. 11, 2010 I kept her status as employed hoping she would be able to return.  Several more months go by and around June we hire a few CNA's in the building the employee used to work in.  About a week after hiring, I get a call from this employee telling me she is released by her doctor.  By this point, however, we don't have a position available for her.  She requested a letter stating the date she was formally taken off payroll.  A week later I get something in the mail from the Department of Labor saying she is being granted unemployment insurance.  I TOTALLY DO NOT UNDERSTAND THIS.  Our company followed FMLA guidelines, even went above and beyond them for this person.  We were WELL within our right to terminate her, so how can she win unemployment??? If someone can't return to work after exhausting 12 weeks of FMLA, what do we as an employer do? If we let them go, will they be granted unemployment? What other options do I have if this situation comes up again?  My company HATES paying unemployment.  They hold me accountable for making sure people are terminated for cause and will therefore not be eligible for unemployment benefits. Please help.  Also, I am in the state of Georgia if that makes a difference. Thank you.


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  • When the employee exhausted the 12 workweek allotment of qualified FMLA leave her absence ceased to be an FMLA issue. If her absence did not extend itself to an ADA-AA absence or a workers compensation absence you could have separated her, without prejudice, for not returning to work after the FMLA expiration. Without prejudice simply would mean that though she could not return to work she did not violate anything that would have caused a termination for cause but on the other hand you could not as a matter of necessity keep a position vacant forever. (Short story. There could be other extenuating circumstances that are too numerous to discuss.)

    However you chose, and it was certainly within your ability, to extend her employment beyond the FMLA expiration date. I can only assume that this was in an unpaid status but she was not separated none the less. Since you were her last employer unfortunately you get stuck with the unemployment payout.  Terminating her after FMLA would not necessarily help your company avoid the payout.

     I had an experience that I could not believe. I had an employee resign; accepted another position and worked for another company for about six months. This person was laid off at the other company and we got the pleasure of paying his unemployment. How could this be?? The explanation was that he had not worked at the other company the qualifying time for them to have to pay . Since he had been with us the last 7 years and was not terminated  we were obligated to foot the bill. This is in the state of Virginia. 

    This does not help you, I know. But given the same set of circumstances that you described even if you separated the person your company would have to pay the unemployment payout.

  • Another word that may not help you but....


    Life is too short to get knotted up about unemployment.  This one person's leave is not likely to cause a change in your rates.  It's insurance.  You pay into it.  Employees are entitled to it in certain circumstances.  Know those circumstances and don't even give it the time of day if the person is entitled.

  • While I can certainly understand the company not wanting to pay out unemployment (most of us in HR don't want to pay out unemployment when we feel a person doesn't deserve it), right now, because of the economy, I have seen some leniency on the part of the people handling unemployment claims.  In the past where it was on the fence, you could see them taking the side of the employer.  Right now, if there is any doubt, they are taking the side of the employee.  I have had to fight hard on one claim where there was gross misconduct and the person left saying he quit.  I didn't think I was going to win this case, as we had to go through multiple steps and we initially lost the claim.  In the end I prevailed, but, at one point, I had told my CEO that I didn't think I was going to win. 
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