FMLA and ADA

[lucy222]

What is the name of your state (only U.S. law)?
I have been out on a medical LOA from my job for about 4 months. During this time I have also received STD benefits. My 12 week statutory FMLA period expired about 6 wks ago. I recently notified my employer that I would be able to return to work in 3 wks or so after the conclusion of my PT and OT. Although I was verbally assured that my employment was secure, it appears as if my employer now wishes to terminate my employment b/c I was unable to return to work at the conclusion of my 12 wk FMLA period eventhough I notified my employer that I was in the hospital and would be unable to return. Do I have any recourse under ADA? Would I qualify for unemployment in New York State if I resign just to prevent me from having a termination on my record? I feel as if resigning or negotiating a layoff is my only recourse...
Any advice would be appreciated.

 

[cbg]

FMLA and the ADA are two separate laws that serve two separate purposes. Nor is the eligibility requirement the same. Not everyone who qualifies under FMLA will also qualify for the ADA - not everyone who qualifies under the ADA will qualify for FMLA. If you are going to be able to return to work with no restrictions in 3 weeks, it is unlikely that you qualify for the ADA. Even if you did, the ADA does not guarantee you additional leave.

No, if you resign under these circumstances, you will not qualify for unemployment.

 

[lucy222]

Thanks, cbg. I believe my employer is within their legal rights to not restore my position in this instance. I have been ill on and off for quite a while...

I was on the DOL website and it stated that an employee can also be denied unemployment if they were fired for cause. I don't think this applies to me, but thought I would get your opinion. Any thoughts?

I will contact my employer to see if I can negotiate a layoff or some other type of discharge. I want to leave gracefully, but also under the best terms possible, esp in this job market.

 

[ecmst12]

You can't qualify for UC as long as you are physically unable to work. Once your doctor releases you to return to work, you can apply for unemployment at that time.

 

[cbg]

You do not need to negotiate a layoff, which btw would be absolutely meaningless. If the employer releases you because they are no longer able to hold the job open, you will qualify for unemployment as soon as you are released to work. If you quit to "keep a termination off your record" which is, if you'll excuse me, a completely asinine thing to do under the circumstances (I'll explain why in a minute) you won't. Quitting for personal reasons is not a qualifying reason for UI in any state.

There is no stigma whatsoever to a hiring manager if you are terminated for medical reasons. They're not going to hear the word, terminated, and immediately jump to the conclusion that you were fired for cause (which you were not). First of all, EVERY person who leaves their employment for any reason whatsoever was terminated. A quit is a voluntary termination. Firings, layoffs, etc. are all involuntary terminations. Any hiring manager worth their salt and all HR personnel know this.

If you are asked the reason for a termination and you say, "I was on an extended medical leave and my employer was unable to hold my job open after my FMLA expired; however, I have been released by my doctor to full duty and anticipate no further medical problems", that's a perfectly acceptable reason to a hiring manager or to HR. There's no need to manufacture a non-existant "layoff" (which in actuality means there is a real possiblity of your being returned to work; it does NOT, as so many people mistakenly believe, mean that you were let go for reasons other than misconduct) if that is your only concern.