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  1. #1
    Join Date
    Jun 2015
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    10

    Default Can You Get Unemployment if Fired While on Disability Leave

    My question involves labor and employment law for the state of: California

    Last December I was put on Disability until 6/30. My doctor has now extended it for another two months.

    My employer has held the job open, but this is a very small office and it has been a great burden. I feel very badly about the situation. Of course I want to return, but I'm fortunate to be very employable and would not require more than a month or two to find a job when I'm ready to go back to work.

    Here are my questions:
    1. Is my employer legally obligated to hold the position open?

    2. I wouldn't fight him on being let go. Will I still be eligible for unemployment insurance benefits between the time disability ends and I find a new job?

  2. #2
    Join Date
    Mar 2012
    Posts
    1,360

    Default Re: Disability and Unemployment

    Quote Quoting amyorg
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    2. I wouldn't fight him on being let go. Will I still be eligible for unemployment insurance benefits between the time disability ends and I find a new job?
    If you handle things correctly.

    You need to be too sick to do that job.

    You have to try to get your employer involved like asking for a leave of absence.

    If at the time you are able to return to work and there is no job for you, then you've got a great shot at UI.

    Are you currently collecting CA's SDI? Because if you're not, you need to get on that.

  3. #3
    Join Date
    Jan 2015
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    1,142

    Default Re: Disability and Unemployment

    if they let you go, you do not need to have been put on a leave of absence. You don't need to do anything except that you have kept the employer informed of your situation and that you have not been released by your doctor.

    If your employer informs you definitively that your job will not be held open for you, file for unemployment right away. Yes, I know they're not going to let you draw benefits because you're not fully able and available for unemployment right now due to health reasons, but I'm a fan of beginning the claim or at least setting it up as soon as possible, as any time that you are not working is time that you don't have wages accruing to set up a claim. I've seen too many people wait until they were fully released by their doctor to file the claim and by that time, they'd lost so many quarters they didn't have a full claim for benefits to set up.

    But when your doctor releases you, first contact your employer. Let them know you're fully released, and if they no longer have a job available for you, immediately reopen that unemployment claim you've already filed, and they should approve it pretty quickly.

    By the way, you're on disability because of a non work related situation, right? Other than the twelve weeks of FMLA that the law requires IF you are qualified, your employer isn't obligated to hold your position open.

  4. #4
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,521

    Default Re: Disability and Unemployment

    1. Is my employer legally obligated to hold the position open? Not indefinitely, no. If FMLA applies, yes for 12 weeks. If FMLA doesn't apply, only as long as their policy states.

    2. I wouldn't fight him on being let go. Will I still be eligible for unemployment insurance benefits between the time disability ends and I find a new job? As long as you qualify financially, I don't know why not.

  5. #5
    Join Date
    Jan 2015
    Posts
    1,142

    Default Re: Disability and Unemployment

    I reiterate, file that claim immediately. You've been off work now for six months. That could mean blank or reduced quarters of wages already for you. Do not delay any longer. In fact, I would if I were you, file right away. The claim will set up monetarily immediately, will be put in pending status, and it will stay in place for one year from the date of filing. This way, if your employer doesn't hold the job for you, it will be there.

    You can deal with reopening it and starting to draw after you are released by your doctor if they do not have work for you when you are released. But you certainly don't want to wait till after the quarter has changed again, which will happen the first full week in July to file for benefits. They use the wages you have made in the first four of the last five completed quarters to set up the claim, and each time the quarters change, the quarters move forward. Much more forward motion and you'll be looking at quarters with no wages in them, which will reduce your claim or eventually disqualify you all together. If your employer does want you to come back and you never need unemployment, the claim will sit there unused until the year from filing date has passed, and then it will go away. No harm, no foul. Doesn't cost the employer or the taxpayers or anyone anything.

    By the way, you mentioned how it won't take you long to find another job, so you wouldn't really need unemployment for long, etc. This has nothing to do with unemployment benefits, which are not in any way connected with your financial need or potential employability. They are strictly set up based on your wages made during the first four of the last five quarters, and will last only a maximum of about 26 weeks (six months) regardless of whether you've found a job or not.

    They are paid based on your being out of work through no fault of your own (which being a documented illness or other type health issue, will undoubtedly be considered not your fault) and being now able, available and actively seeking other equivalent work. When you're released by your doctor, you'll meet these criteria if your employer has not held the job for you. The only problem is that if you wait until then to file the claim, your monetary qualification for benefits will suffer. So file it immediately!

  6. #6
    Join Date
    Mar 2012
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    1,360

    Default Re: Disability and Unemployment

    Quote Quoting comment/ator
    View Post
    I reiterate, file that claim immediately.
    If you're tempted to go this route, you need to answer the question as to whether you're on CA's SDI. It makes a big difference, and you need to get the facts before you do something that you may not be able to undo.

  7. #7
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,521

    Default Re: Disability and Unemployment

    Why? Where are you anticipating a problem? There's nothing wrong with her establishing her UI claim while she's on a period of disability. She's not going to be penalized for protecting her rights. Not in a paternal state like CA.

  8. #8
    Join Date
    Sep 2005
    Location
    Behind a Desk
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    98,846

    Default Re: Disability and Unemployment

    If she's disabled and unable to work, she can apply for SDI (or disability through her employer-sponsored policy if the employer chose that over SDI), but she can only get unemployment benefits if she's able to work. She can't collect SDI and unemployment at the same time.

  9. #9
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,521

    Default Re: Disability and Unemployment

    Agreed. No one said she can.

    But if there is a chance that she be medically cleared to work in the next 6-9 months, she will at that time be able to collect unemployment, and the sooner she files her claim, the more wage quarters she will retain.

  10. #10
    Join Date
    Mar 2012
    Posts
    1,360

    Default Re: Disability and Unemployment

    First off, EDD makes allowances on the base period when you are on EDD's SDI prior to filing a claim so there isn't necessarily a rush.

    The bigger issue is that I'm not so sure this person has been separated. I think she is on a leave of absence that is perserving the employer/employee relationship, and EDD is admant that you must make an attempt to extend the leave or you forfeit your good cause separation, and then there will be no reopening when she's better without returning to work and purging the disqualification.

    http://www.edd.ca.gov/uibdg/Voluntar...orExtendaLeave

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