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


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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