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Law Offices of Dan A. Atkerson

Can You Get Unemployment Benefits During FMLA Leave?

By Dan Atkerson on January 11, 2017

Can a person simultaneously be on FMLA leave and claim unemployment? While the answer may seem obvious, the facts of this case muddle the water a little.

In a case called Texas Workforce Commission v. Wichita County, Tex. Court of Appeals, 2nd District, December 8, 2016, a woman had rightfully taken Family and Medical Leave Act (FMLA) time off work from her employer, Wichita County in August 2011. Although FMLA leave is unpaid, Wichita continued to pay her health insurance premiums. In September 2011, Wichita County determined it was unable to accommodate her with a different position, at that time but continued to pay her health insurance premiums.

In October 2011, the woman applied for employment benefits though the Texas Workforce Commission (TWC). Her employer, Wichita County, opposed the unemployment benefits as she was still technically employed and receiving health insurance. The TWC allowed her claim as she was on unpaid leave.

The woman’s FMLA leave ended in November 2011 and she returned to work. However, the County requested an administrative hearing regarding whether unemployment benefits were proper under the situation. The TWC Appeal Tribunal affirmed the initial determination and ordered the County’s account billed for the unemployment benefits.

The County then appealed this decision in judicial court, claiming she was not entitled to unemployment benefits because she was employed throughout the entire period. Although the woman argued he was not “employed” under the labor code that defines “employment” as “services for wages,” the court agreed with the County and reversed the decision to grant unemployment benefits.

The appeals court agreed with the lower court, claiming she was not qualified to receive unemployment benefits. The appeals court found that it would be “absurd.” As receiving unemployment benefits also requires the person to be looking for new employment, this would negatively affect the current employer. It would also seem to make FMLA paid leave through the states, which went against the FMLA statute that the leave is unpaid.

In the end, the woman was unable to receive the unemployment benefits from the time she was on unpaid FMLA leave.

Dan A. Atkerson is a Dallas employment lawyer who assists people who are wrongfully denied FMLA leave, or who are terminated in retaliation for exercising their right to medical leave.

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