Last Updated on May 11, 2022 by Fair Punishment Team

The rules surrounding unemployment benefits and medical leave can feel a little confusing, and particularly if this is the first time you have found yourself in this situation. To help you out, we have put together everything you need to know to help you manage your situation and ensure that you have the answers you need to move forward.

What Is Unpaid Medical Leave?

Before we get into the nuances of collecting unemployment, it is worth taking a moment to consider just what we mean by “medical leave”. A Medical Leave of Absence refers to a specific category of leave that is used for an employee facing a medical condition that will significantly reduce their physical and or mental health to the extent that they are no longer able to perform the key responsibilities of their job properly.

Essentially, this is any condition that means it is no longer feasible for the employee to do their job.

As with any other type of leave, there are a number of compliance requirements that must be met, and employee engagement ramifications to address and consider. Medical leave of absence requests falls under the Family and Medical Leave Act (FMLA).

What Is The Family and Medical Leave Act?

Known more commonly as the FMLA, the Family and Medical Leave Act was signed in 1993 by President Clinton, and amendments were made to the Act in 2008, 2010, and 2015 in order to add more clarification to the definition of “family members” as covered by the Act.

This is an important piece of legislation that places a legal obligation on businesses to give up to 12 weeks of unpaid leave each year to their employees. This can be taken by the employee for family or health reasons. If the family member is in the military, employees are entitled to take up to 26 weeks of absence.

While the actual time off under the FMLA is unpaid, the employer may require you to use any accrued sick days or vacation to cover all or part of your leave. Employers will also need to continue to cover your health benefits and the security of your job during your absence.

Leave taken under the FMLA can reach up to 12 weeks, and can be taken all at once, or intermittently – the latter is often favored in issues with mental health conditions, the birth of a child, or situations in which the employee is required to undergo regular therapy or treatment.

Who Is Eligible For FMLA?

In order to qualify and be eligible for FMLA, you will need to have worked in your current job for a minimum of 12 months prior to the leave request and to have covered a minimum of 1250 hours within the last year.

In addition, your job must employ a minimum of 50 employees within 75 miles in order to be eligible – this is known as the 50/75 rule. Any employers with fewer than 50 employees are not required to offer FMLA coverage.

Federal law also states that the Act only applies to any immediate family members, and this includes spouses, children, and parents. An amendment was added in 2008, in order to cover any adult children or next of kin situations, and both common law and same-sex marriages are also eligible.

In some cases, an extended definition may be applied, and parents-in-law, grandparents, and civil union partners may also be eligible for inclusion.

Why Can I Take Unpaid Leave Under the FMLA?

There are a wide range of reasons that may permit an employee to take unpaid leave under this act, and this includes:

• The birth of a child
• To care for a military service family member with a serious health condition
• To care for a family member (as defined in the previous section)
• To deal with a mental health condition such as post-traumatic stress disorder (PTSD), anxiety, depression, or bipolar disorder – all of these can prevent employees from performing or collaborating as they usually would.
• To deal with a physical illness, which means that the employee is unable to carry out the necessary tasks and responsibilities required by their job. According to the Act, this could refer to any “serious health condition that makes the employee unable to perform the functions of the position”. There may be communication and coordination with healthcare providers to verify and validate this.

Employee Rights And FMLA

It is important to note that employees do have a number of rights while taking leave under the FMLA, but you may still be laid off while you are on FMLA leave. According to the law, the Act ensures that employees have the right to return to their jobs after their period of leave.

However, the role or job cannot be protected if there is a situation in which the employee would have been fired before or after they took their leave, regardless of the FMLA leave. This can be tricky for employers, as they are required to prove, using sound, solid evidence, that the employee would have been laid off whether the period of leave occurred or not.

In a similar vein, you cannot be fired for taking leave under the FMLA, but you may find that your position is terminated after you leave the business. Once again, this can be a delicate subject and tricky for employers to prove. They will need to have solid evidence that the process to undergo a termination of the contract was already in place, prior to the employee going off on leave under the FMLA. Some examples may be:

• The employee failed to comply with orders from supervisors
• The employee has frequent absences from work
• The employee was frequently late to work
• The employee already had existing performance issues prior to taking the leave
• There is evidence that the decision to terminate was in place prior to the employee taking FMLA leave

If one or more of these criteria are in place, employers may be in a position to let employees go, regardless of their leave status.

FMLA And Unemployment

One of the most common questions asked surrounding this topic is whether or not you are eligible to claim unemployment benefits while you are taking leave under the FMLA, and the general answer is that no, you are not entitled to any unemployment benefits. 

This is because although you are not actually working while you are on your medical leave, you are still technically employed by the company.

This means that you will not be entitled to any unemployment insurance – this is aimed to support those who are not in employment, and who are out of work through no fault of their own – and you will also be ineligible for any type of unemployment benefit during the period of time that you are taking leave from work under the FMLA.

As we have mentioned, leave that is taken according to the FMLA can last for a period of 12 weeks, and this can be taken as one long, extended period of leave, or, in some cases, intermittently.

In the majority of cases, you will be permitted to apply for unemployment benefits once the period of leave authorized under the FMLA has ended – that is, the 12 weeks – and you still find yourself in a position where you are unable to return to work or undertake your normal duties and responsibilities.

The process for this can be a little complex, and so it is a good idea to have a legal professional to help you navigate this.

As noted, you are ineligible to apply for unemployment benefits if you are the one who has initiated the period of leave under the FMLA, and if your employment is suspended because you are unavailable for work and unable to perform other suitable work that your employer may have available. If, however, you do not initiate the leave under the FMLA, the situation is slightly different.

In some cases, you may be able and willing to work, despite specific restrictions or medical issues, but your employer forces you to take medical leave. Alternatively, you may be unable to carry out your usual responsibilities, but be willing and available to work in another position within the company, only to find yourself forced onto medical leave.

In this situation, you may find yourself eligible for unemployment benefits, but once again, it is crucial that you have the legal support and guidance that you need to take this forward.

Your Next Steps

If you believe that you may have a case to claim for unemployment benefit, or are uncertain about whether taking leave under the Family and Medical Leave Act is the best option for you, we can help.

Our team has a wealth of experience in employment law and will be able to advise you on the best and most suitable next steps to help you move forward and claim the support that you deserve. Get in touch today, and see how we can help.