NY: FMLA Question/ Unemployment

[lazloo1]

What is the name of your state (only U.S. law)?
New York

Hello..I have a few questions.
I have been on unpaid FMLA (Anxiety and Stomach Problems) since November. I have been employed with my company for four years. They paid me for Thanksgiving but I have not received anything for Christmas - New Years- ****** Luther King (all paid Holiday's)...do they legally owe me for that? I was also entitled to a bonus and never got one. Since it is a new year- and vacation days start over..Am I entitled to get paid during my FMLA leave? Do I still have one more month of FMLA available or can it start new since it is a new year? My doctor will write me another note stating that I am unable to return to work...can they fire me ? Will that entitle me to receive unemployment benefits? Please let me know if you need any additional information. Thank you in advance for your assistance. BTW I sent my employer the forms...was I supposed to report this or do anything on my end to confirm the FMLA. My job said that I was good, but I want to be sure.

 

[swalsh411]

FMLA is unpaid leave that protects your job. You are not entitled to be paid for holidays or vacation while on unpaid leave. As soon as you exceed 12 weeks, you can be fired regardless of what your doctor says. It doesn't reset in the new year. If you are unable to work why would you think you would get unemployment?

 

[eerelations]

Employers are not legally required to pay their employees any kind of pay, including holiday pay, while their employees are off on FMLA leave.

12 weeks' FMLA leave is based on a rolling year not a calendar year, so no, your allowable 12 weeks don't start over just because January 1 occurred. If you exceed 12 weeks off, your employer is legally free to fire you.

UI benefits are for active job seekers. If you're too sick to work, the UI people will deem you too sick to job hunt, and so if you're fired for being too sick to return to work after being off for 12 weeks, you won't be entitled to UI benefits. You do have a shot at getting them after you're recovered and are deemed fit for work.

 

[commentator]

As soon as your twelve weeks are up, you need to speak with your employer. And I mean speak directly with them, not just send them things. If they confirm that they have terminated you at the end of your 12 weeks of FMLA, which they likely will do, since you are not going to be able to return to work at the end of your FMLA, or if you receive a letter telling you that you have been terminated, you'll need to file for unemployment at once.

Yes, when your 12 weeks is up, you can be legally fired if you are still not able to return to work. And as everyone pointed out, the 12 weeks of FMLA does not roll forward year to year. (In other words you don't get up to 12 weeks last year then 12 more after January 1st, it's a running 12 months based on when you filed) If you are unable to return to work at this point, and your company elects to terminate you, which they may do legally,we agree, then you need to FILE a claim for unemployment right away.

The unemployment system will at this point pull in all the wages they have in the last 5 quarters to use to set up a claim. This setting up is also done on a rolling basis, in other words, it doesn't matter how many years you have worked in total like Social Security, it is totally based on the past 18 months before the date the claim was filed.

When you file, after the claim is set up monetarily, the system will immediately ask about your health situation, whether you have been released by your doctor and are able and available for equivalent work. If you do not have a doctor's statement releasing you, you will not be able to begin drawing unemployment benefits right away. But the important thing is that you have gotten a claim filed, right now. This way, there is a claim set up, which will stay in place and be good for a year, if you become able to work at any time during the year you'd be able to begin drawing from this claim.

That way if you are not able to go back to work for a long time, you will have a claim set up based on your wages from quarters when you did work. As the quarters roll forward, you'll lose quarters when you have worked to blank quarters, and by the time a year has passed, if you file for the first time then, there will be no unemployment benefits in there for you to draw from, even if you are released by your doctor and able to work at that time.

If I were you, I'd try very hard to get better during my remaining month of FMLA, be very sure when it is due to end. Good jobs are hard to find, and being unemployed can cause a lot of anxiety.

 

[cbg]

Minor correction - while it is true that most employers use a rolling year it is not the only possible way. Some employers do use a calendar year, or a fiscal year. The DOL gives employers the choice of a couple of different options. While the odds strongly favor a rolling year, the only way the employee can be certain is to check with his or her own HR/Benefits department.

 

[lazloo1]

Another Question: Thank You

I just want to thank all of you for setting me straight..I truly appreciate your help. I am new at this and for some reason I couldn't reply to all of you separately.

I just have a few more questions...if you would be so kind.

If I cannot return back to work, will I need to pay them for the full amount of my health insurance? I have been paying the percentage and I really cannot afford to pay the entire amount from November. I believe that I would be eligible for Cobra if they terminate my employment- is that correct?

One more stupid question**************can I quit and be eligible for unemployment? I haven't applied for disability because I am under the impression that I wouldn't get it- since I did not require surgery.

I apologize if I am all over the place, but I am desperate and want to know all of my possible options.

Thanks again.

 

[cbg]

If I cannot return back to work, will I need to pay them for the full amount of my health insurance? If you are UNABLE to return to work, no. If you could return to work but chose not to, then the law gives them permission to charge you back (though not all employers avail themselves of the permission). But if you CANNOT return, then they cannot.

I believe that I would be eligible for Cobra if they terminate my employment- is that correct? Yes.

can I quit and be eligible for unemployment? No.

I haven't applied for disability because I am under the impression that I wouldn't get it- since I did not require surgery. Nothing in the law says you have to have surgery before you can apply for disability. Apply. The worst they can say is no.

 

[commentator]

OP, DO NOT QUIT your job right now. Why would you do this???!!!!! You are on FMLA for health reasons. Being fired at the end of your FMLA period because you are still unable to return to work is in no way considered the same as being fired for a misconduct cause. It is not a more virtuous thing to do to quit your job than to be fired because you were unable to return to work after a health related issue. The unemployment system considers this to be an unavoidable circumstance, in other words, you were unable to avoid being ill, so if the company chooses to fire you, you are out of work through no fault of your own. If you quit rather than return to work when you are able, no unemployment.

If you want unemployment insurance to ever be a factor, do not quit the job. Or you will NOT be approved. If you draw it must be that you are out of work through no fault of your own. if you decide to quit the job, instead of letting them terminate you because you are not able to go back, then you will NOT get unemployment benefits approved, except under very rare circumstances, which we do not have here. Just that your job is stressing you out and perhaps causing health problems and you just do not want to return to it is not going to be remotely considered enough of a good reason.

If your doctor releases you to return to work, and you inform the employer of this, and they do not want you back, and say they terminated you, then at this point, you are able to begin drawing unemployment benefits. If your doctor will not release you to full time work, then you are not going to be able to draw unemployment benefits, because in order to draw unemployment benefits, you must (1) be out of work through no fault of your own (fired, not quit, in your case) and (2) able and available for full time work.

I stand by my advice earlier, that you need to file for benefits as soon as your company has terminated you, so that you'll have the quarters to set up a claim, and you can save that claim for up to a year before you begin drawing it. Perhaps your health will improve. I have seen many people who had been released by their doctor and were receiving unemploymet benefits, making the required work searches, while they were filing for social security disability. If it happens, they'll tell you how to deal with it.

In order to file for social security disability, you will need to start the process after you have been out of work a certain amount of time, I believe. Whether or not you've had surgery isn't really the deciding factor. But it doesn't sound to me as though you are ready for that yet. You just do not want to go back to your current job.

Unemployment is absolutely not for people who are off work due to health reasons, it is not like a disability insurance in states that do not have a state disability, it's not AFFLAC or something similar to let you get by on while you are too sick to work. It is only for those who are out of work not by their own fault, looking for work and ready to go back to work immediately.