Monday, March 9, 2015

Can a Former Employee Collect Unemployment Benefits Even When Not Able and Available For Work?

Occasionally an employee exhausts their leave under the Family Medical Leave Act, as well as all other benefit time available to him or her and is still unable to return to work due to their serious medical condition. Furthermore the employer has determined through the interactive process required under the Americans With Disabilities Act that no reasonable accommodation exists which would allow the employee to perform the essential functions of their job for the foreseeable future. It becomes apparent that the employer can no longer hold the employee’s job and terminates the employment relationship. The question then becomes whether the employee is entitled to unemployment benefits by virtue of the discharge.

Under the Unemployment Insurance Act, a claimant is generally eligible for benefits if that person involuntarily became unemployed through no misconduct of their own and the claimant is able and available for work. The Illinois Department of Employment Security (“IDES”)defines “able and available for work” as being willing and physically able to accept any suitable employment. A claimant who is medically unable to work at all is generally not “able and available for work” and will be denied benefits.

Let’s say, though, that the employee in the example is able to work part time, and could just no longer perform the essential functions of his or her previous employer. Can that employee be eligible for unemployment benefits? It is likely so. The IDES says that while a total inability to work disqualifies an applicant from benefits, a partial inability to work only reduces the benefits to which a claimant is eligible on a pro rata basis. So, a claimant who is medically able to work only two days a week, is only eligible to receive 2/5ths of the unemployment benefits to which he or she would be entitled if the claimant was able and available for full time work. 

But, what, if any, rights to unemployment benefits does an employee have who resigns their employment at the end of their FMLA leave because they have exhausted their benefits and leave time but are still medically unable to return to work? One might assume that they are not only unable and unavailable for work, but also voluntarily resigned their employment thereby disqualifying them from unemployment benefits. This would be an erroneous assumption.

The Unemployment Insurance Act carves out an exception to the general rule on benefit eligibility described above for those who resign due to health issues. The Act states as follows:

Sec. 601. Voluntary leaving. 
     A. An individual shall be ineligible for benefits for the week in which he or she has left work voluntarily without good cause attributable to the employing unit…

    B. The provisions of this Section shall not apply to an individual who has left work voluntarily: 

       1. Because he or she is deemed physically unable to perform his or her work by a licensed and practicing physician, or because the individual's assistance is necessary for the purpose of caring for his or her spouse, child, or parent who, according to a licensed and practicing physician or as otherwise reasonably verified, is in poor physical or mental health or is mentally or physically disabled and the employer is unable to accommodate the individual's need to provide such assistance;… 

Fortunately, in this specific instance, as well as a handful of other exceptions to disqualification as a result of resignation, the claim is not charged against the employer. Rather, it is paid from a separate pool of funds created for this purpose.

We have described the general rules that apply to general situations such as these. Naturally, unemployment eligibility is determined on a case by case basis according to the particular facts of that case. Employers should always consult with your labor and employment attorneys before contesting unemployment eligibility to determine their rights and obligations under the law.