Not many people realize that to receive unemployment benefits, an applicant must be willing and able to work. That is why a person receiving unemployment must certify each week that s/he is looking for work. And, what if a worker is off on FMLA leave? Could that person receive unemployment benefits? The court in Texas Workforce Commission v. Wichita County, Texas, 2016 WL 7157247 (Tex. App. Ft. Worth 2016) said no. It might seem obvious that if someone is out on FMLA leave, then that person must be too ill to work.

But, in this case, the employee, Julia White, suffered from anxiety and depression. She went out on sick leave. When that leave ran out, her employer placed her on unpaid leave. It continued to pay for her medical benefits. At a meeting, the County decided it could not offer a job that would accommodate her impairment. So, the parties agreed her employment would cease after the FMLA period of 12 weeks ended. But, Ms. White applied for unemployment benefits before the 12 weeks elapsed. She testified, apparently without benefit of a lawyer that she was not sure what her status was during those 12 weeks. She said her job ended due to illness. TWC allowed her to receive benefits. It billed the County’s account. Wichita County filed a petition seeking administrative decision, contesting the award of benefits.

On appeal, the court found the employee was out on FMLA leave and could not, therefore, receive unemployment benefits. Tex.Lab.C. Sec. 207.002-.003 provides that unemployment benefits are available to persons who are unemployed. An unemployed person is defined as a person who is not performing services for another for a wage. But, Tex.Lab.C. Sec. 207.021(a) provides that a person receiving benefits must be able to work and is actively pursuing employment. Instead of addressing the question regarding when Ms. White’s employment ended, the court simply found that during the period of FMLA leave, she was not eligible rot unemployment benefits. See the decision here.