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Unemployment appeal

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What is the name of your state? What is the name of your state? Arkansas
I was fired for accruing too many absences in a rolling year. I was employed for 12.5 years with this hospital. They are denying my unemployment claiming misconduct. That was never spoken during my termination meeting. Also, I was never offered FMLA. Do I stand a chance at winning my appeal?
 


PayrollHRGuy

Senior Member
The hospital isn't denying anything. The DWS is denying based on what you and the employer have told them.

Bases 100% on what YOU have written you should be disqualified. You knew there was a maxim number of absences and you exceeded that number in the time allotted. That is misconduct.

Why do you think FMLA should have been offered.
 

commentator

Senior Member
Did you receive warnings, were you fully aware that you were in danger of being terminated for absences? Did you know that this final absence might lead to your termination? What was the specific reason for your very last absence, the one that resulted in your termination? Was the FMLA that you referred to because of your own illness, a family member's illness, etc.? More information will help us help you. What EXACTLY does your determination denying benefits in the initial decision say?

While you are moving forward to appeal this decision, make sure you are continuing to keep your weekly certifications up to date. If the initial decision to deny benefits is overturned, you would be back paid only for those weeks where you have made a weekly certification for benefits.
You may stand a chance of winning your appeal, though discharge for violations of attendance policies are quite difficult to fight if you were fully aware of the policies, knew where you stood in regards to your attendance, and for some reason decided to be absent from work for a non medical reason. If you had a medical reason, by all means, obtain a doctor's statement or verification from a medical facility that it was a medical reason, because that would help you more than much of anything else to get an approved claim. Even if you'd pushed the attendance policy to the max, if you were out with a medical statement, it might be possible to be approved by decision. Let us know, give us some more information to work with.

You HAVE been denied initially, right? There is a first decision, in about three to four weeks, and then after that there is a chance to appeal and a hearing where you and the employer can both be present. either in person or by phone. Where are you in this process
 
Did you receive warnings, were you fully aware that you were in danger of being terminated for absences? Did you know that this final absence might lead to your termination? What was the specific reason for your very last absence, the one that resulted in your termination? Was the FMLA that you referred to because of your own illness, a family member's illness, etc.? More information will help us help you. What EXACTLY does your determination denying benefits in the initial decision say?

While you are moving forward to appeal this decision, make sure you are continuing to keep your weekly certifications up to date. If the initial decision to deny benefits is overturned, you would be back paid only for those weeks where you have made a weekly certification for benefits.
You may stand a chance of winning your appeal, though discharge for violations of attendance policies are quite difficult to fight if you were fully aware of the policies, knew where you stood in regards to your attendance, and for some reason decided to be absent from work for a non medical reason. If you had a medical reason, by all means, obtain a doctor's statement or verification from a medical facility that it was a medical reason, because that would help you more than much of anything else to get an approved claim. Even if you'd pushed the attendance policy to the max, if you were out with a medical statement, it might be possible to be approved by decision. Let us know, give us some more information to work with.

You HAVE been denied initially, right? There is a first decision, in about three to four weeks, and then after that there is a chance to appeal and a hearing where you and the employer can both be present. either in person or by phone. Where are you in this process
 
all Of my absences were for personal illness. I was aware, I made a very strong effort when I realized where I stood with my attendance. The last illness was beyond my control. I am in no way saying that I am not guilty of what I was fired for. I’ve interviewed with several other companies and at least 2 of them said that FMLA should have been mentioned to me or brought to my attention so that this wouldn’t be a problem. This is why I’m asking questions. Thank you.
 
The hospital isn't denying anything. The DWS is denying based on what you and the employer have told them.

Bases 100% on what YOU have written you should be disqualified. You knew there was a maxim number of absences and you exceeded that number in the time allotted. That is misconduct.

Why do you think FMLA should have been offered.
 
I don’t believe that is misconduct. We can agree to disagree on that. FMLA should have been offered to protect my job. It was never brought to my attention and they have since changed their policy on it.
 

Zigner

Senior Member, Non-Attorney
I don’t believe that is misconduct. We can agree to disagree on that. FMLA should have been offered to protect my job. It was never brought to my attention and they have since changed their policy on it.
Why do you feel that FMLA applied (or should have applied) to your absences?
 
Sorry - your reply to the question earlier had scrolled off the screen.

How much time did you miss?

You should read the following (https://www.dol.gov/whd/regs/compliance/whdfs28d.pdf) and then contact a local employment law attorney for an opinion about whether your termination was legal.
I said that the days I missed were due to the same illness. I didn’t always have the money to go to the doctor, but prescriptions were called in and tests were run. I had problems the fall of 2017 and late summer 2018. That was when my attendance problems were brought to my attention.
 

PayrollHRGuy

Senior Member
Arkansas DWS,
I don’t believe that is misconduct. We can agree to disagree on that. FMLA should have been offered to protect my job. It was never brought to my attention and they have since changed their policy on it.

The FMLA and the UI disqualification are two seperate issues.

UI: There was a rule. You knew about it you violated it. That is considered misconduct. Further, had UI decided you were no longer working because of your health and were still ill you would be disqualified until you were well.

FMLA: https://www.dol.gov/whd/regs/compliance/whdfs28f.pdf along with the other link.

Tell us about your illness like you told your employer.
 

commentator

Senior Member
Okay, basically, FORGET ABOUT the FMLA issues while you are working on the unemployment insurance issues. You maybe should've receive FMLA, but the unemployment system is NOT the area where this would be determined. First, you work on your unemployment issues, THEN you see an attorney and determine if the workplace violated the FMLA statutes and terminated you illegally because of those.

In the meantime, BIG QUESTION: Was your last absence, your VERY LAST absence, the one that led to your being terminated, due to illness? DID YOU HAVE A MEDICAL EXCUSE? As in did you have a statement from your doctor? I don't mean this was something like an on going (for example) say, upset stomach and you had it before and you had it again and called in sick. Or a migraine...and you didn't see the doctor. Or even that you were feeling anxious and just couldn't cope with work today..... If you had a medical situation, such that you needed to see a doctor, you stand a very good chance of getting your unemployment insurance approved. If you didn't, if you just called up and said, "Hey, I'm not feeling so good today....." but you didn't go to the doctor or seek treatment of some sort for this situation, you do not have a very good chance of being approved.

You will find that in the hearingthe unemployment officer is asking very specific questions that answer these questions I'm bringing up with you here.

Do not, in the unemployment hearing, start griping about and bringing up how you should've been approved for FMLA. It is not relevant, is not going to have much weight at all in the actual situation of whether or not you have knowingly, willingly, and without a valid medical excuse, violated the company's attendance policy. Most everything is going to be predicated on that last absence. The way the unemployment system looks at it, even if you had too many absences, if you were genuinely ill on that last day, so ill that you had to seek medical treatment, you couldn't help that. That's not misconduct. Anything else, not so much.

If it was just an on-going thing, and you just didn't feel like going in to work on this particular day because you have the same old thing wrong with you that you've been having, and you didn't seek medical treatment that day, your chances are not so good. But remember, unemployment is not the venue where you discuss whether or not you should've been approved for FMLA. That's a whole other issue and will not help your case in the unemployment hearing.
 
Okay, basically, FORGET ABOUT the FMLA issues while you are working on the unemployment insurance issues. You maybe should've receive FMLA, but the unemployment system is NOT the area where this would be determined. First, you work on your unemployment issues, THEN you see an attorney and determine if the workplace violated the FMLA statutes and terminated you illegally because of those.

In the meantime, BIG QUESTION: Was your last absence, your VERY LAST absence, the one that led to your being terminated, due to illness? DID YOU HAVE A MEDICAL EXCUSE? As in did you have a statement from your doctor? I don't mean this was something like an on going (for example) say, upset stomach and you had it before and you had it again and called in sick. Or a migraine...and you didn't see the doctor. Or even that you were feeling anxious and just couldn't cope with work today..... If you had a medical situation, such that you needed to see a doctor, you stand a very good chance of getting your unemployment insurance approved. If you didn't, if you just called up and said, "Hey, I'm not feeling so good today....." but you didn't go to the doctor or seek treatment of some sort for this situation, you do not have a very good chance of being approved.

You will find that in the hearingthe unemployment officer is asking very specific questions that answer these questions I'm bringing up with you here.

Do not, in the unemployment hearing, start griping about and bringing up how you should've been approved for FMLA. It is not relevant, is not going to have much weight at all in the actual situation of whether or not you have knowingly, willingly, and without a valid medical excuse, violated the company's attendance policy. Most everything is going to be predicated on that last absence. The way the unemployment system looks at it, even if you had too many absences, if you were genuinely ill on that last day, so ill that you had to seek medical treatment, you couldn't help that. That's not misconduct. Anything else, not so much.

If it was just an on-going thing, and you just didn't feel like going in to work on this particular day because you have the same old thing wrong with you that you've been having, and you didn't seek medical treatment that day, your chances are not so good. But remember, unemployment is not the venue where you discuss whether or not you should've been approved for FMLA. That's a whole other issue and will not help your case in the unemployment hearing.
Ok, I will forget the FMLA. The very last day that I called in to work, I was in the emergency room. Yes I was very very ill. I have my discharge papers and a note and all of that jazz.
 

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