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Unable to return following FMLA

by Sarah
(Cedar Bluff, Alabama)

Unable to return following FMLA

My 3 mo medical leave is due to expire in about a week. I was granted a leave due to stress and depression. Some people were let go in my department due to cut backs and I inherit additional responsibilities which caused physical and mental problems. I've been with the company over 5 years with an excellent attendance and performance record. My doctor has release me to go back to work but the mere thought has caused me to become even more depressed. I 'm having problems sleeping, eating and participating in normal daily activities. I know I will not be able to handle the job if I go back. I really need to work and supported myself with short term disability while on leave. Will I be able to collect unemployment benefits if I quit due to the medical reasons noted above?

I do not believe you would be able to collect unemployment.

Your doctor has released you back to work and although Alabama apparently has a law that says good cause might be found for a quit due to the worker's illness .. I'm sure it requires medical documentation.

What you are proposing is relying on a self-diagnosis.

As I keep saying .. it's not easy to quit and collect.

When it comes to unemployment benefits .. the moving party (you) has to think as objectively about the good cause as the unemployment department does.

If your doctor had not released you at the end of your FMLA and the employer decided not to retain you as an employee and you had requested a personal LOA which was also denied and the employer terminated your employment .. then when the doctor finally did release you .. you would have been eligible .. because you would have been able and available for work and the termination by the employer would not have been for misconduct and of course .. they would have been the moving party.

Alabama does have a law that apparently allows good cause for quitting due to illness, but you have to read the law .. to know what the limitations of the law might be.

Everything about unemployment .. requires a certain amount of consideration of how the laws are written.

So, here is the text copy and pasted from Alabama's code 24-4-78 (2) on voluntarily quitting a job.

(2) VOLUNTARILY QUITTING WORK. If he has left his most recent bona fide work voluntarily without good cause connected with such work.

a.1. However, he shall not be disqualified if he was forced to leave work because he was sick or disabled, notified his employer of the fact as soon as it was reasonably practicable so to do, and returned to that employer and offered himself for work as soon as he was again able to work; provided, however, this exception shall not apply if the employer had an established leave-of-absence policy covering sickness or disability and:

(i) The individual fails to comply with same as soon as it is reasonably practicable so to do; or

(ii) Upon the expiration of a leave of absence shall fail to return to said employer and offer himself for work, if he shall then be able to work, or if he is not then able to work, he fails to so notify his employer of that fact and request an extension of his said leave of absence as soon as it is reasonably practicable so to do.

2. In case of doubt that an individual was sick or disabled, or as to the duration of any such sickness or disability, the director may, or if the employer requests it, the director shall require a doctor's certificate to establish the fact or facts in doubt.

3. An established leave-of-absence policy shall be any leave-of-absence policy covering sickness and disability
communicated to the employee by the customary means used by the employer for communicating with his employees.

4. Nothing herein shall be construed or interpreted as authorizing the payment of benefits to any person during, or for, unemployment due to sickness or disability or during any period in which he is on a leave of absence granted in accordance with an established leave-of-absence policy, the duration of which leave was set in accordance with his request or in accordance with a collective bargaining agreement; except, that if such leave of absence is on account of pregnancy and extends beyond the tenth week following termination of such pregnancy, the individual shall not be denied benefits under the provisions of this subdivision (2) beyond such tenth week if she has given the employer three weeks notice of her desire to return to work, is then able to work and has not refused reinstatement to a job which under the provisions of subdivision (5) of this section would be deemed suitable for her.

b. When an individual is disqualified under this subdivision (2):

1. He shall not be entitled to benefits for the week in which the disqualifying event occurs or for any week thereafter until:

(i) He has reentered insured employment or employment of the nature described in subdivisions (5), (6), (7), (8), (9), (10), or (18) of subsection (b) of Section 25-4-10; and

(ii) For which employment he has earned wages equal to at least 10 times his weekly benefit amount for the benefit year in which such disqualification is assessed; and

(iii) He has been separated from such employment under nondisqualifying conditions.

2. The total amount of benefits to which he may otherwise be entitled as determined in accordance with Sections 25-4-74 and 25-4-75 shall be reduced by an amount equal to not less than six nor more than 12 times his weekly benefit amount.

3. For the purpose of the experience rating provisions of Section 25-4-54, no portion of the benefits payable to him, based upon wages paid to him for the period of employment ending with the separation to which the disqualification applies, shall be charged to the employer's experience rating account. If the individual has been separated from employment other than his most recent bona fide work under conditions which would have been disqualifying under this subdivision (2) had the separation been from his most recent bona fide work and the employer answers a notice of payment within 15 days after it is mailed to him detailing the facts in connection with the separation, then no portion of any benefits paid to him based upon wages for the period of employment ending in such separation shall be charged to the employer's experience rating account.

c. An individual shall not be disqualified if he left his employment and immediately returned to work with his regular employer or to employment in which he had prior existing statutory or contractual seniority or recall rights. When this exception is applied, any benefits paid to such individual based upon wages paid for that period of employment immediately preceding the separation to which the exception is applied, which have not been heretofore charged to the employer's experience rating account, shall not be charged to the account of such employer.

d. For the purposes of this subdivision (2) and subdivision (3) of this section, the director in determining the "most recent bona fide work" shall only consider employment of the nature described in subsection (a) of Section 25-4-10. The director shall also consider the duration of the most recent job or jobs, the intent of the individual and his employer as to the permanence of such work and whether separation from the immediately preceding employment was under conditions which would be disqualifying in the event such immediately preceding employment should be determined to be the most recent bona fide work.

Comments for Unable to return following FMLA

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Jan 20, 2011
Follow up question
by: Anonymous

Thank you for the information. I have a follow up question. Could I go to a different doctor and if the second doctor agrees that I'm unable to return to work right now, would my employer and short term disability have to abide by the second doctor's finding? If I'm terminated before being released from the second doctor, would I qualify for unemployment?

That, I don't know. You might want to take a look at FMLA guidelines

Dec 30, 2012
unable to return to work following fmla
by: Anonymous

Did you recieve any follow-up ...I have been on disability for a year. My doctor keep extending it un till. A year past. Yes if you get a second opinion from another doctor yes that still counts you are allowed to receive second opinion.

Family Medical Leave Act Elaw Advisor Provided by the USDOL so you can learn about your rights with regard to FMLA.

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