Fmla

[leahann]

Ohio


My daughter has asthma and I have FMLA so when needed I can stay home and give her treatments every 4 hours. Well lately its been pretty bad and I had to stay home more than what I was approved for. Any time it is severely cold outside her asthma flares up and it takes days for me to get it under control. Recently I was asked by my employer to re-certify because I went over the amount of time I was approved for but I am no where near close to the 12 weeks I have to use for her. I assumed that when she asked for re-certification that my current FMLA was void so when I needed to call off with FMLA I didnt I called off regularly and went over my points allowed before I would be terminated. Now I do not have a job. My question is with not being able to use FMLA to call off when I had it, will I still be able to get unemployment because not being able to use FMLA made me lose my job. And she did not inform me that my current FMLA was still good or that I had 15 days to turn in the new paperwork.

My question is can I still get unemployment if I was calling off for FMLA but the HR told me I had to recertifiy and didnt tell me if my current FMLA was still valid and I called of regularly for FMLA causes and ended up going over my attendance points which I was terminated for?

 

[LdiJ]

Ohio


My daughter has asthma and I have FMLA so when needed I can stay home and give her treatments every 4 hours. Well lately its been pretty bad and I had to stay home more than what I was approved for. Any time it is severely cold outside her asthma flares up and it takes days for me to get it under control. Recently I was asked by my employer to re-certify because I went over the amount of time I was approved for but I am no where near close to the 12 weeks I have to use for her. I assumed that when she asked for re-certification that my current FMLA was void so when I needed to call off with FMLA I didnt I called off regularly and went over my points allowed before I would be terminated. Now I do not have a job. My question is with not being able to use FMLA to call off when I had it, will I still be able to get unemployment because not being able to use FMLA made me lose my job. And she did not inform me that my current FMLA was still good or that I had 15 days to turn in the new paperwork.

My question is can I still get unemployment if I was calling off for FMLA but the HR told me I had to recertifiy and didnt tell me if my current FMLA was still valid and I called of regularly for FMLA causes and ended up going over my attendance points which I was terminated for?

You should go ahead and file for unemployment. I cannot guarantee that you will get it but you still need to apply and go through the process, even through the appeals process if you are initially denied.

 

[Proserpina]

While I agree there's absolutely no harm in trying, attendance issues just might be deemed "misconduct".

The FMLA issue might muddy the waters a little - but I'll defer to the expert on that one.

 

[cbg]

For future reference, if you seem to be using FMLA more often than initially certified OR if the employer has reason to believe that your situation has changed, they may ask for re-certification whether you've used all your time or not. They may not ask for re-certification more often than every 30 days.

By all means apply for unemployment. The worst that can happen is that you're denied, and in that case you're no worse off than if you didn't apply in the first place.

 

[commentator]

The whole issue of FMLA, was it this, did I call in on it, did I not recertify for it when I was supposed to is only going to cloud up the unemployment issue. What I would strongly suggest, as you've been told here, is that you immediately file a claim for benefits.

Above all, when filing, DO NOT bring up that you "have to have time to be with my daughter to meet her medical needs!" This could potentially keep you from being able and available for other equivalent work, which is one of the eligibility requirements for unemployment benefits. When they ask, "Is there any reason why you could not accept another job immediately?" and "Are there any days hours or shifts that you would not be able to work?" you need to say no. Don't qualify or hedge or try to set yourself up, because the situation where you'd have to refuse a shift or certain hours has not yet arisen and may never happen. There's no need to disqualify yourself ahead of time, when it may never become an issue.

The application for benefits will ask why you were terminated, and you will explain that you were terminated for violating the employer's point system for attendance. You need to say something briefly explaining that your absences were due to a medical reason, your daughter's treatment, that you had in the past had approval for FMLA for these absences, and that you did not have any idea these absences were not going to be covered by FMLA.

Simply say something like how you and your employer had a misunderstanding on when you would need to recertify. You made every good faith effort to comply with their requirements, you always called in appropriately when you were going to be on one of these on going medical absences, and you did not realize that the last absence (the one after which you were terminated) was going to result in your termination, because you thought it was covered by FMLA. You do not need to go too thoroughly into this issue, as it will only have a slight effect on your claim and is only marginally relevant.

It is NOT the business of the unemployment system to deal with any company's compliance with FMLA. They would never award you unemployment based on that the employer had failed to comply with FMLA laws or regulations. What they would do is say that your last absence, the only one they are looking at, which gave you too many attendance points and caused the company to terminate you was due to a medical reason. Whether or not you are in danger of being terminated, the unemployment system assumes that a medical reason for an absence (with verification from a physician) was unavoidable. One does not have it by choice or have reasonable control of whether or not they have it. Though it may legally have resulted in your termination, based upon the company's policy, you are still out of work through no fault of your own, and therefore fairly likely to be approved.

You may be asked to provide a medical statement from your daughter's doctor regarding her condition and your presence being necessary to provide treatment when she is having these attacks. Let the unemployment people guide you through what they need you to provide for them. They'll also contact the employer, look at their records, and then within a couple of weeks, they'll make an initial decision about whether unemployment benefits are approved for you.

Then after the first decision, either party, either you or the employer could request an appeal of this decision, so of course if you were denied, you're going to request an appeal of the decision, based on the reason for denial, and carry it through to a second decision. If this appeal results in approval, then you'd be back paid for the weeks since you filed the claim. But there's no money for weeks before you file the claim, so go right on and file it immediately.

And remember, in order to draw benefits, you must be able, available and actively seeking other work, participating in any job searches or activities required by the unemployment system. Unemployment benefits is never designed to be any sort of disability or medical leave.

 

[cbg]

Just for clarification, I am not seeing any violation of FMLA on the part of the employer. They asked for recertification, as they have the statutory right to do, when the pace of the requests was stepped up. The employee not only failed to provide the recertification, but ceased to indicate when an absence was FMLA related. The employer therefore applied their usual point standard and termed when their policy said to term.

This is not to say that I am disagreeing with anything commentator is recommending with regards to the UI claim - this is simply in case the poster is thinking she has any kind of legal action against the employer.