Am I eligible for unemployment benefits if I am terminated from my job due to medical leave beyond 12 week FMLA?

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Am I eligible for unemployment benefits if I am terminated from my job due to medical leave beyond 12 week FMLA?

I’ve recently developed cardiac myopathy/congestive heart failure (full blown symptoms episode occurred 6 months ago). Doctor suggested time off but I went back to work with very little down time. Another serious episode 2 months ago; this time I went out under FMLA. If my cardiologist believes the medical leave should extend beyond the initial 12 week FMLA. If I am then terminated as a result (dealing with certain termination anyway due to a new boss – I was told recent reduced performance so I being put on a performance plan), am I eligible to then collect unemployment benefits?

Asked on June 24, 2011 under Employment Labor Law, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Unfortunately, there is a good chance you would not be eligible for unemployment benefits in that instance, though to be sure, you should consult with an employment attorney in person, who can evaluate all the circumstances in detail.

The problem is:

1) There is no general right to take leave from work, unless and only to the extent provided by FMLA or some similar state-level law.

2) Being absent from work when it is not approved by your employer, a use of paid time off (e.g. sick or vacation days), or a protected leave like FMLA is grounds for termination for cause.

3) Termination from cause makes one ineligible for unemployment.

It's not a given that, if you were fired and then applied for UI, that your employer would contest it; but if they did, they would likely have grounds to do.

You might, however, want to look into social security disability and other programs that might provide compensation if you can't work.


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