My wife & Iare expecting our second child in January. It has been a high risk pregnancy. My wife was placed on bed rest for 8 weeks this past summer. She is going to have a C section to minimize risk to herself and the baby.

Our problem is that 12-8 = 4 weeks left of FMLA coverage. C sections generally take 8 weeks or more to recover from.

My wife has been at this job for 6 years without issue, minus missing 12 weeks 3 years ago with our first child. Her work has already told her that they will not hold her job passed the 4 weeks she has left. She is really hurt that they will not hold her job but she understands that they are not required to. My wife wants to return, but they will not budge on the 4 week period.

They gave her a form to sign that states that she agrees to resign if she were unable to return at the conclusion of the FMLA period. I told her not to sign it since it could be used against her if she claims unemployment.

We are worried sick that she will not qualify for unemployment while she looks for a new job after she is done healing...any advice?

I would agree that she should not resign. If her employer terminates her employment at the end of her FMLA, then ONCE SHE IS MEDICALLY CLEARED TO RETURN TO WORK she should have no trouble qualifying for unemployment. She will not be eligible while she is medically unable to work.

Thank you for the reply.

My little brother is a manager of a car dealership (I called him after I posted this thread) and he asked his HR director about the resignation form for me. He told me that employees are not required to sign ANY employer forms agreeing to anything....only government forms.

He also told me that companies usually use this type of form to get rid of employees that they do not want....which crushed my wife to hear. My wife has never been disciplined in any manner, but she is at the top of the professional pay scale at her company.

My wife is going to return the form that has the "resignation clause" unsigned.

I hope you are right about the her qualifying for unemployment after she is medically cleared. Otherwise we could be royally screwed in this economy.

Another thing....

3 years ago when my first child was born....... my wife's OB-GYN cleared her to return to work at 9 or 10 weeks into the FMLA 12 weeks.

My wife's company sent her to their doctor who then refused to clear her for another 2 weeks. We didn't really care back then since she was still under the 12 week FMLA timeline and she wanted to be home with the baby.....although it did hurt to have 2 more weeks without her paycheck.

What if this happens this time? What if my wife;s OB-GYN clears her to return to work within the 4 week period, but the company doctor does not?

I would imagine we would get to claim unemployment sooner....

Your brother is correct about the forms. I can't think of any forms that she would be required to sign.

I do not necessarily agree that this is a method to get rid of employees they don't want, however. If they have a policy of not extending FMLA, it could conceivably be considered discriminatory for them to extend it for her no matter how valuable an employee. While an employer is not required by law to treat all employees exactly the same, an employer who follows the same rules, policies and standards for all employees will likely come off much better in any discrimination suit than one who does not. It's entirely possible that her employer has simply decided that rather that decide to allow this much for employee x and that much for employee y, that they simply will cut all employees off at the same place and reduce their risk of discrimination claims.

I am right about the unemployment. As long as she is medically able to work, having been let go because the employer cannot hold her job for her any longer is not a disqualifying reason in any state.

I do not necessarily agree that this is a method to get rid of employees they don't want, however. If they have a policy of not extending FMLA, it could conceivably be considered discriminatory for them to extend it for her no matter how valuable an employee. While an employer is not required by law to treat all employees exactly the same, an employer who follows the same rules, policies and standards for all employees will likely come off much better in any discrimination suit than one who does not. It's entirely possible that her employer has simply decided that rather that decide to allow this much for employee x and that much for employee y, that they simply will cut all employees off at the same place and reduce their risk of discrimination claims.

I can see your point. My wife is a social worker that runs several residential buildings for people with developmental disabilities. She works for a very large private company. The nature of that type of work is that the support staff are largely poor and urban. My wife has told me in the past that they frequently have issues with people trying to abuse the various benefits that are available. Sadly my wife may get caught up in the BS

I am right about the unemployment. As long as she is medically able to work, having been let go because the employer cannot hold her job for her any longer is not a disqualifying reason in any state.

cbg knows she is right about the unemployment ins. but just for you to hear it from another person also, I concur that she is correct re the above.

Congrats to you & your wife on the baby to be.

My wife went to turn in her paperwork for her FMLA leave today. They told her that they would not register her leave unless she signed the form with the resignation clause and would consider her resigning her position the day she went out to have our child unless she did so.

My wife only agreed to sign the form if she could add a note before her signature stating that she was not agreeing to resign and that she intended to return to work as soon as she was medically able and that her signature only denoted an affirmation of her medical and demographic information. She had them make her a copy.....and then she called me.

I called the local DOL office that handled FMLA complaints to inquire if it were proper for an employer to mandate that an employee agree to resign if they are unable to return at the conclusion of their 12 week FMLA leave.
.....and she told me that as far as they were concerned they didn't care (pretty much exact words)as their office was only concerned that her job was protected for the entirety of the 12 weeks and what happens after that does not matter under FMLA.

I told her that we understand that my wife's job protection would be gone, but making her agree to resign to get that leave nullifies her unemployment benefits afterward....and she responded... "yea, and..."

I tried to make the argument that it was improper to make an employee agree to resign in order to get their FMLA leave certified, but she said it didn't matter under the FMLA.

So now I am worried sick about paying our mortgage and student loans and my wife is crying. I only hope that I am making too much of the legal distinction between "resign" and being terminated for being medically unable to perform their job duties.

In most if not all states, being forced to resign is the same as being fired as far as unemployment is concerned. So I wouldn't worry too much about unemployment.

I know you can't help worrying, but if you keep a record of the copy you made with the note that she is being forced to resign, the UI office WILL take that into consideration. They're not just going to hear the employer say, resigned, and ignore everything you have to say.

I guess the emotion of having baby #2 is making us overly sensitive.

We are just not use to this situation. We both worked full-time through college and have never been unemployed before in our entire lives. We are entering uncharted waters at a very inopportune time.

I appreciate your time and patience. I can only imagine the number of posts you get like this from emotional panicked people. Thank you

I'll post updates so that anyone else who in similar situations can have some sort of roadmap.

Any other advice is always welcome.....

~S