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Zachary
Zachary, Lawyer
Category: Employment Law
Satisfied Customers: 4021
Experience:  Contracts, Wrongful termination and discrimination
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an employee on a leave of absence is filing for unemployme

Customer Question

an employee on a leave of absence is filing for unemployment
Submitted: 1 year ago.
Category: Employment Law
Expert:  Zachary replied 1 year ago.
Hi,

Thank you for contacting us.

Was the employee placed on leave of absence by the employer, or did the employee request a leave of absence for him/herself?
Customer: replied 1 year ago.

Employee requested and presented a letter from a doctor


Patient is unable to return to work until 8/5/2013


Patient is placed on LOA for her medical condition and further testing and treatment.


Next appointment 7/30/2013

Expert:  Zachary replied 1 year ago.
Thank you for your response.

Under these circumstances, the employee is not entitled to unemployment, as the leave is voluntarily taken/requested time off by the employee. Unemployment is only available where the employer has caused the employee to be on leave for reasons unrelated to the employee's job performance.

Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am compensated by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Best Regards,
ZDN
Zachary, Lawyer
Category: Employment Law
Satisfied Customers: 4021
Experience: Contracts, Wrongful termination and discrimination
Zachary and 7 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Should I consider her actions a a resignation and accepted as such. I am unfamiliar with Leave of absences, and was under the impression that while on a leave you could not be fired, she was not but is claiming to have been. There are many witnesses to confirm the employee was not fired by us

Expert:  Zachary replied 1 year ago.
Whether or not she can be terminated depends on whether or not she is covered by a statute providing for protection.

Was she injured at work?

How long has she been an employee and how many employees are there in total for the business?
Customer: replied 1 year ago.

No injuries


 


She has been employed for 1 1/2 years


 


Total employees 9

Expert:  Zachary replied 1 year ago.
The Family Medical Leave Act, which requires employers to hold an employees job for 12 weeks so that the employee may take medical leave, does not apply to employers in Arizona with less than 50 employees.

Thus, by law, you are free to terminate her as long as she does not have a written employment contract with you that provides that she may take this type of leave and have her job reserved.

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