Can I get Unemployment Benefits if I was fired for being sick after FMLA was exhausted?

by Lisa
(Edmond, OK, USA)


I was fired in July. The reason given to me was "failure to return following exhaustion of FMLA leave." I have chronic migraines that are a disability. Over the past year I took the 12 weeks of FMLA leave some of which my employer required of me because I couldn't return to work without a doctors note but he wasn't here so I missed extra days. This happened many times and added up quite a bit. Anyway, when I was told my FMLA was exhausted I asked for my condition to be considered a disability, even though they could have easily seen the issues I was having, they were on my back every week. I asked for a reasonable accommodation. It was denied. I asked for their suggestions. I got no response. I sent them the guidance from EEOC and JAN. Human Resources said to come in to talk to them. I called in sick one day but asked if I could just come in late so my meds could work. I was told no. This was one of the accommodations that would have worked for me. The next Monday I was fired. I didn't apply for unemployment but my family is suffering now and bills need to be paid. So am I eligible? Will they deny me?


Hi Lisa,

You should have no problem getting unemployment if your absences were for attendance due to illness.

I do understand why an employer does this, they do have a business to run and don't want to be bothered with our personal problems .. be it health or anything else.

But the discharge is without good cause if it was for an absence for illness.

I also need to qualify this answer though.

There are circumstances that could be with good cause irregardless of your illness.

Failure to provide Dr. notes required by the employer, Failure to follow the call-off procedure, etc.

And the final incident of absenteeism is the most important and is always looked at.

If your termination paper said you were fired because your FMLA was exhausted .. you should not have a problem getting benefits.

FMLA protects you from being terminated. It puts you into a protected class, and employer are wary of discharging someone while they are on FMLA, but FMLA cannot protect you from being fired for another reason. It only protects you when you follow all the rules.




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