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Unemployment if employer decided NOT to accommodate, but put me on unpaid leave????

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    Unemployment if employer decided NOT to accommodate, but put me on unpaid leave????

    Hi all,

    I know unemployment benefits and filing is specific to each state. However, I am wondering if any of you can comment on the situation that I am in.

    I asked my employer for a scheduling accommodation. They said that they cannot accommodate me, and instead placed me on unpaid FMLA leave. I had 10 days of paid sick leave, but have been on unpaid leave since about September 20, 2016. Having no income is beginning to become problematic.

    Does anyone know if I can file for unemployment? I AM able to work. I did not want to take the leave, but was forced to. At this point there is no end in sight, as the employer is just saying they cannot accommodate me.

    I am a teacher at a private school. No union or even Human Resources Department. I have a contract for this school year: 2016-2017. The scheduling accommodation request was to have breaks between the classes that I teach. I am in Ohio.
    RRMS Dx: 3/23/15
    (Optic Neuritis Dx 2/27/15; Feb/2014 right leg numbness--at the time diagnosed as Sciatica, but probably first episode)
    Started Tysabri 5/22/15: (Infusions: 5/22/15, 6/18/15, 7/16/15)

    #2
    Originally posted by Teekybird View Post
    Does anyone know if I can file for unemployment?
    In order for you to file for unemployment, you have to be unemployed. Right now you're not unemployed -- you're an employed person out on FMLA leave.

    That may change at the end of your 12-week leave, but right now you're still employed and not entitled to unemployment.

    What might be more helpful for you now is legal advice.

    Under the ADA, people with disabilities aren't entitled to accommodations just because they look reasonable to them and they want them. Reasonableness depends on the circumstances. Neither the requester nor the employer may be the one to determine what's reasonable.

    Your request for breaks between classes might not be reasonable if your school would have to hire another teacher just to cover your breaks. An extra $25,000 or $50,000 a year for a private school might not be reasonable.

    Had you already filed for FMLA leave and your employer took advantage of it, or did they decide all by themselves to open an FMLA case for you on their own and you never applied for it? I'm not sure the latter is legal. But whether the application was your idea or you never applied, you may need legal advice to determine whether you can be forcibly put on FMLA leave if you didn't specifically request it.

    An employer can put an employee on leave if they pose a threat to the health or safety of other employees. That doesn't appear to be the case here.

    In some cases, people are entitled to unemployment benefits if they're forced to quit a job due to intolerable working conditions. Again, you need legal advice to find out how that works and whether it would apply in your case. Needing breaks that you're not allowed as an accommodation might not be classified as intolerable. If teaching one class after another without breaks is an essential part of your job, needing breaks might mean that you aren't able to perform the job.

    Are you able to work without breaks between classes and would just prefer to have them, or you unable to work without breaks? That might be a factor in what's determined to be reasonable, what's intolerable, and what's just bad luck.

    There are many factors in play in your situation. Hopefully you can get legal advice before things take an even worse turn. Good luck.

    Comment


      #3
      Jreagan made great points. I thought FMLA also depended on number of employees. May be if under 15 employees, not even required FMLA.
      So depending how small your private school is. Guessing not that small.

      When hired, was there any employee policy on attendance, etc...that you were given? Is there any policy on how long you are entitled to unpaid leave before being employment ends?

      Did your employer tell you why they placed you on unpaid leave? Did you have to sign anything? Did they take time to consider your request or did you get a no immediately? Likewise, was the leave immediately following the decision? Some of these answers may point to them consulting their attorney.

      I would definitely consult an attorney. I would guess you need an ERISA specialist still, since not public educational system. Protect yourself.

      Hope things work out.
      Kathy
      DX 01/06, currently on Tysabri

      Comment


        #4
        Hi Teekybird:

        The sooner you consult an attorney, the better, because it may be quite awhile before you see any money, if you do at all.

        It sounds like your employer is going to use the time of your FMLA leave to build a legal case for terminating your contract at the end of the leave, so you should be using the time to look into making a case of your own. You're going to have to prevail against several assertions by your employer.

        At the end of the 12 weeks, your employer may terminate you for being unable to fulfill the terms of your contract. The contract should be looked at by the attorney to see whether the exact terms are relevant, and not just details that don't affect the outcome if the mutual agreement at the time of the signing, whether expressed or implied by the contract, is that you would teach the assigned classes at the assigned times. They may assert that not being able to do that is a breach of contract.

        Typically, an employment application contains a question like, "Are you aware of any reason you might not be able to perform the duties of your job?" If your application did, and you replied no, your employer may take your request for accommodations so soon after the start of your contract to mean that you were dishonest in answering no. Dishonesty on an application is fraud, and your employer might try to use that as a rationale for not paying unemployment when they terminate you.

        If your current contract was a follow-on to previous contracts without a specific question about your ability to perform, a specific clause in your contract about performance might become an issue.

        Your attorney should also help you determine whether your employer violated your rights under the ADA. First, it will have to be determined whether your request for breaks between classes was reasonable and whether their refusal was legally justified, then whether you were put on involuntary unpaid leave as retaliation for asking for something you may be legally entitled to, and for terminating you based on discrimination rather than job performance.

        So there are many different aspects to your situation, and all of them have to be considered to determine whether you're entitled to unemployment or will have to prevail under a ruling from the EEOC or a civil lawsuit for unlawful termination, or some combination of those. You might need to consult with, and even hire, more than one attorney to cover them all.

        The handwriting's already on the wall for termination at the end of the 12 weeks, with a possible fight for unemployment or other compensation attached. It won't be pretty, so I hope you get active right away on getting an attorney. Best of luck.

        Comment


          #5
          Unemployment...

          Hi, thanks for the responses. I will write more later. Going to bed now.

          i do have an employment attorney.

          This is has been going on for about a year... Lots of details to it. I'll write more about what all has been going on if you all are interested.

          But out thanks for the responses, since I posted on here my attorney did get back to me and said to not file for unemployment right now.
          RRMS Dx: 3/23/15
          (Optic Neuritis Dx 2/27/15; Feb/2014 right leg numbness--at the time diagnosed as Sciatica, but probably first episode)
          Started Tysabri 5/22/15: (Infusions: 5/22/15, 6/18/15, 7/16/15)

          Comment

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