• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

I'm about to get fired, can i get unemployment?

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

lea215

Junior Member
What is the name of your state (only U.S. law)? Oklahoma

My supervisor informed me tonight that i am going to get terminated next week. The HR is currently reviewing my case and the result will surely come out by next week. It's all about my FMLA.I work 40 hours per week and had my fmla because i had my baby, i took 57 work days of fmla for a total of 456 hours (from Aug.31 to Nov.17,2010) so i was expecting that i still have 3 more days left for that 480 hours per year of fmla. i sent the company's HR an email a week before Nov.17 informing them that i am going to get bck to work on the said date. I went to work on Nov 17 and i was sent home because my supervisor said that the hr needs to activate my timecard first. I sent HR email again the next day hoping i can start working but there was no response. I ended up working on nov 19th. just last week i had to take 3 days leave because my daughter was diagnosed having a urinary tract infection and her fever strike on 106 three times within those days so i had to stay with her because my husband could not handle both a sick 5 year old and my 6 month old baby at the same time.I reopened fmla and the insurance company that approves fmla confirmed that i still have fmla hours left, they even said that i am still for 160 more hours of fmla. When i went bck to work i got the bad news from HR that they could not accept my fmla because i have exceeded the 480 hours. I dont know what to do right now. I feel like everything is wrong. the company recorded the nov. 17 &18 as fmla while i was there and ready to work on both days but they sent me home cuz their system is not ready for me to work there yet. i feel that i am going to be wrongfully terminated next week. do you think i can get unemployment for this reason?
 


commentator

Senior Member
Chances are good ---with a couple of big old caveats. You must file for unemployment, and they will set up your claim, and you must have had sufficient wages in the first four of the last five completed quarters. This is called having "monetary eligibility." You don't have this, no unemployment benefits, regardless of the circumstances.

Okay, you file, you have a claim that sets up monetarily. You explain to the unemployment system that you were terminated for being absent after you had used all your FMLA due to a medical situation with your child. Whether or not you had actually used up all your FMLA is a moot point right now, they terminated you because they, the company, believed you had used up all your FMLA for the year. And they could. So they have. Arguing with the unemployment system about whether or not you really are out of FMLA, or whether they SHOULD have allowed you to come back to work those days they said they were not ready for you to come back is not going to be helpful.

Very important -- did you take your child to the doctor for this last absence you were fired for, and can you obtain a medical excuse for your absence for those days? This will be vital to having your claim approved for unemployment. Have her pediatrician confirm that she was ill, that you brought her in, etc. That you saw the doctor on such and such date with her.

IMPORTANT -- do not explain that you "had" to be absent because your husband could not deal with a sick infant and a five year old and blah blah blah blah. They are not interested, do not care about your personal situation.
They will only want to know if your last absence from the company was due to a medical reason (your daughter's illness) with medical verification of this available and provided to them.

The company has the right to fire you, but in unemployment circumstances, illness with a medical excuse is considered an unavoidable reason for absence, in other words, it is not considered misconduct.

Then, once you've filed for unemployment insurance, you will begin certifying for weeks of benefits as they pass, and they will begin doing the investigation to determine if you are going to be approved for benefits. This investigation will take a while. In a best case scenario, you will be approved and be back paid for each week you've filed for and will be beginning to get regular checks within about six weeks.

You must, while registering for benefits, also register for work, and be sure you tell them you are able, available, and actively seeking other work. Do not restrict yourself as to the hours you would be available to work ("I can only work afternoons and alternate weekends because my husband has no one to help him keep the children and my babysitter prefers....") You do not go into any of that with the unemployment system if you want to draw benefits. Later, when there is actually a job offered to you, at that point you can get into the whys and wherefores of how you're going to work out the child care issues and what the hours will be, but do not try to dictate those things at the beginning of your claim.

You say you are able, available and actively seeking work, you register for work as they tell you to and you do not restrict yourself excessively related to when and where you want to work.

It sounds as though your company decided to get rid of you because they suspected they might be going to have attendance issues with you now that you've got a new baby. They actually had a right to do this, as long as they stayed in the FMLA guidelines, but if you were off for an unavoidable reason (medical) then yes, you do have a good shot at unemployment benefits.
 
Last edited:

cbg

I'm a Northern Girl
FYI, FMLA is restricted to the condition for which you opened it. In order to use it for any other condition, you have to re-certify for that condition. So even if you had time left, it could not be used for your daughter's illness since you had not certified the time for that. It's too late to do anything now, but if you had asked for FMLA paperwork for that condition, thus putting your employer on notice that your daughter had a potentially FMLA-eligible condition, you might have been able to use whatever time you did have left for that. But FMLA time that was certified for your pregnancy/maternity leave is not available for anything but that.
 

lea215

Junior Member
Chances are good ---with a couple of big old caveats. You must file for unemployment, and they will set up your claim, and you must have had sufficient wages in the first four of the last five completed quarters. This is called having "monetary eligibility." You don't have this, no unemployment benefits, regardless of the circumstances.

Okay, you file, you have a claim that sets up monetarily. You explain to the unemployment system that you were terminated for being absent after you had used all your FMLA due to a medical situation with your child. Whether or not you had actually used up all your FMLA is a moot point right now, they terminated you because they, the company, believed you had used up all your FMLA for the year. And they could. So they have. Arguing with the unemployment system about whether or not you really are out of FMLA, or whether they SHOULD have allowed you to come back to work those days they said they were not ready for you to come back is not going to be helpful.

Very important -- did you take your child to the doctor for this last absence you were fired for, and can you obtain a medical excuse for your absence for those days? This will be vital to having your claim approved for unemployment. Have her pediatrician confirm that she was ill, that you brought her in, etc. That you saw the doctor on such and such date with her.

IMPORTANT -- do not explain that you "had" to be absent because your husband could not deal with a sick infant and a five year old and blah blah blah blah. They are not interested, do not care about your personal situation.
They will only want to know if your last absence from the company was due to a medical reason (your daughter's illness) with medical verification of this available and provided to them.

The company has the right to fire you, but in unemployment circumstances, illness with a medical excuse is considered an unavoidable reason for absence, in other words, it is not considered misconduct.

Then, once you've filed for unemployment insurance, you will begin certifying for weeks of benefits as they pass, and they will begin doing the investigation to determine if you are going to be approved for benefits. This investigation will take a while. In a best case scenario, you will be approved and be back paid for each week you've filed for and will be beginning to get regular checks within about six weeks.

You must, while registering for benefits, also register for work, and be sure you tell them you are able, available, and actively seeking other work. Do not restrict yourself as to the hours you would be available to work ("I can only work afternoons and alternate weekends because my husband has no one to help him keep the children and my babysitter prefers....") You do not go into any of that with the unemployment system if you want to draw benefits. Later, when there is actually a job offered to you, at that point you can get into the whys and wherefores of how you're going to work out the child care issues and what the hours will be, but do not try to dictate those things at the beginning of your claim.

You say you are able, available and actively seeking work, you register for work as they tell you to and you do not restrict yourself excessively related to when and where you want to work.

It sounds as though your company decided to get rid of you because they suspected they might be going to have attendance issues with you now that you've got a new baby. They actually had a right to do this, as long as they stayed in the FMLA guidelines, but if you were off for an unavoidable reason (medical) then yes, you do have a good shot at unemployment benefits.
thank you so much for taking the time to respond.. yes i do have the medical certificate from my daughters doctor indicating my daughters condition on those days i wasnt able to go to work and for how many days should i have to be off work to take care of her
 

lea215

Junior Member
FYI, FMLA is restricted to the condition for which you opened it. In order to use it for any other condition, you have to re-certify for that condition. So even if you had time left, it could not be used for your daughter's illness since you had not certified the time for that. It's too late to do anything now, but if you had asked for FMLA paperwork for that condition, thus putting your employer on notice that your daughter had a potentially FMLA-eligible condition, you might have been able to use whatever time you did have left for that. But FMLA time that was certified for your pregnancy/maternity leave is not available for anything but that.
thank you for your reply :). .. yes i did reopen an fmla leave and got an email that says i am still eligible and they asked me to fax my daughter's medical certification, which i did 2 days ago. i also called them (9the insurance company that handles the company's fmla) about this new fmla that i just opened and they said they'r just waiting for that certification and i should be approved for that.
 
Last edited:

swalsh411

Senior Member
This isn't a forum competition. Feel free to not believe the free (correct) advice you have been given here.
 

lea215

Junior Member
This isn't a forum competition. Feel free to not believe the free (correct) advice you have been given here.
i understand... i'm just concerned cuz whenever i read posts in the other website, i feel like there's no hope for me in getting unemployment and i might look stupid filing it. the thing is, this is just my second year here in america, i dont know rules and what my rights are. two whole different responses makes me feel confused. Im still thinking about trying to get unemployment after the company fires me. I wish it's not a waste of time though. thank you guys :)
 

pattytx

Senior Member
You said you may have additional FMLA leave coming and are working on that. Also, that your employer may work with you for your child's illness. None of that was posted on the other forum on which you posted.
 

commentator

Senior Member
I read that whole other post and I do not see anything in it that changes anything about what I said about your getting unemployment. Even if you are fired for absenteeism, without FMLA protection of any kind, if your last absence was with a doctor's statement showing that you had a medical excuse for the absence, this is not considered misconduct, and thus you would probably be able to be approved for unemployment.

The only reason you shouldn't qualify is if you do not have sufficient wages to set up a claim, this being based on the wages you have had for covered employers in the past eighteen months to two years. Unemployment does not go back through your whole work history like social security benefits.

But for goodness sake, it costs nothing to file, there is no guarantee that you will or will not qualify, but there is no downside to filing. The thing is, it will be less money than you can make working, you will have to register for and be able and available for work and making job searches and participating in job seeking activities as recommended by your state office.You will have to wait until the claim is settled to get the money, even if approved, which can be several weeks, even months, and you will only get a certain amount of this money, and when it ends, there is no recourse. Extensions may end before you get to sign up on them, so the only number of weeks of unemployment insurance you can really count on are what your state gives you, which is 6 months or less of benefits. But then you did mention that you "had only been here for two years." If you do not have good proof of citizenship or your eligibility to work in this county, you do not qualify for unemployment benefits, as you must always be able and available for work.


But unemployment isn't really an "opinion call." It is pretty firmly set up by rules and guidelines which may vary slightly but are basically similar in all the states. After many years in the sytem, I'm wlling to match my guesses and opinions with anyone on any site like this. Unemployment is not a welfare or need based program. It is an insurance program.
Anyone can file for unemployment benefits, it costs nothing, and even if they tell you no, that's just the way it goes. Looking stupid is not a thing I'd worry about, unless I let it keep me from getting benefits I could have been approved for.
 
Last edited:

lea215

Junior Member
You said you may have additional FMLA leave coming and are working on that. Also, that your employer may work with you for your child's illness. None of that was posted on the other forum on which you posted.
the insurance company that my employee hires to approve fmla received my fmla claim and i sent the medical certification last friday. They said i still have 160 hours left for my fmla but my company said i have none. The HR sent an email to my supervisor to not let me proceed with the fmla cuz i already used up all my fmla hours. Then i found out that the 2 days that i was there to work (nov.17, 18), and they sent me home cuz they said they have to activate my timecard first (i dont know what they mean about that, when i brought that up to the manager they are now denying that they told me that), they used 18 hours of my fmla hours on those days. But my point is I was there to work, I was ready to work but they sent me home. In the other website, one poster said that i should've called HR, i did notify HR a week before nov17 that i'm gonna go to work on Nov 17, i did call, sent email, even went to the HR office itself. When i called, nobody ever answered but the automated machine telling me that the voicemail inbox is full and i could not leave msg, thru email i do have proof that my emails went thru but they never replied, i went to the HR office, the person there told me that the HR employee that has my file was so busy and to just send her an email, which i did, the 2nd day i went there, that person was out for leave. But anyways, since my employer said that i used all of my fmla hours and they said that there's no way that i still have 160 hours left for my fmla, i tried to count all my fmla days during my maternity leave and found out they used 2 days fmla on the days i was ready for work and was sent home. Last week i took 3 days off cuz of my daughter's illness, so that will leave 1 day absence that they wont allow for me to apply fmla cuz i only have 2 days left (as per my company's rule), but they also have a rule that if we have pto or floating hours (which we can use if we have to take off work and still get paid), they will automatically use it, my supervisor didnt use it on my third day of absence so that added additional occurrences on my attendance that will lead me to termination.
 
Last edited:

lea215

Junior Member
I read that whole other post and I do not see anything in it that changes anything about what I said about your getting unemployment. Even if you are fired for absenteeism, without FMLA protection of any kind, if your last absence was with a doctor's statement showing that you had a medical excuse for the absence, this is not considered misconduct, and thus you would probably be able to be approved for unemployment.

The only reason you shouldn't qualify is if you do not have sufficient wages to set up a claim, this being based on the wages you have had for covered employers in the past eighteen months to two years. Unemployment does not go back through your whole work history like social security benefits.

But for goodness sake, it costs nothing to file, there is no guarantee that you will or will not qualify, but there is no downside to filing. The thing is, it will be less money than you can make working, you will have to register for and be able and available for work and making job searches and participating in job seeking activities as recommended by your state office.You will have to wait until the claim is settled to get the money, even if approved, which can be several weeks, even months, and you will only get a certain amount of this money, and when it ends, there is no recourse. Extensions may end before you get to sign up on them, so the only number of weeks of unemployment insurance you can really count on are what your state gives you, which is 6 months or less of benefits. But then you did mention that you "had only been here for two years." If you do not have good proof of citizenship or your eligibility to work in this county, you do not qualify for unemployment benefits, as you must always be able and available for work.


But unemployment isn't really an "opinion call." It is pretty firmly set up by rules and guidelines which may vary slightly but are basically similar in all the states. After many years in the sytem, I'm wlling to match my guesses and opinions with anyone on any site like this. Unemployment is not a welfare or need based program. It is an insurance program.
Anyone can file for unemployment benefits, it costs nothing, and even if they tell you no, that's just the way it goes. Looking stupid is not a thing I'd worry about, unless I let it keep me from getting benefits I could have been approved for.
Thank you, to be exact, i've been workin in that company for 20 months, and got 60 days of fmla, do you think i still could qualify for unemployment? And also i've been here in the US for 23 months now, I do have proof that i'm eligible to work here in the US. I have permanent residency (green card).
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top