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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7517
Experience:  Significant experience in all areas of employment law.
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I am on disability presently. It seems that my position at

Resolved Question:

I am on disability presently. It seems that my position at my place of employment has been dissolved and the company has downsized and relocated in my absence. When I am able to return to work and my disability is discontinued will I be able to collect unemployment if there is no job to go back to? If so, then how is it calculated regarding pament of benifits?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question. How many months it's been since you last worked and when do you expect that you will next be able to work?
Customer: replied 2 years ago.

I have been out from work since Oct 7,2011.

If things go well I am hoping to be able to work no later than March 2012.

Expert:  Patrick, Esq. replied 2 years ago.
Thank you so much for providing this additional information.

Generally speaking, you will be eligible to receive benefits provided that you have received enough wages during the base period to establish a claim (either $1300 in one quarter of your "base period," or at least $900 in your highest quarter and total base period earnings of 1.25 times your high quarter earnings), you are physically able and available to immediately accept work, actively seeking work, and unemployed through no fault of your own.

I asked when you expect you will next be able to work because, although you do not need to file for unemployment immediately upon losing your job, you must not wait so long that your "base period" now no longer includes any of your previous wages earned. If you became unemployed in October and expect to be ready to re-enter the workplace by March, this should not be an issue.

You can use this chart provided by the EDD to calculate what your expected benefits will be: http://www.edd.ca.gov/pdf_pub_ctr/de1101bt5.pdf

I sincerely XXXXX XXXXX this information helps you and I wish you the very best of luck. Bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Please abide by the honor code of this website by kindly clicking on the GREEN ACCEPT button if my answer has been helpful to you. Thank you very much.
Customer: replied 2 years ago.

I was under the impression, that because I am on disability (not workman's comp), and due to no fault of mine, I will not be able to come back to the position that I left. I thought that the I would be able to consider my "lay off" as of the time in which I discontinued working from disability and not be jeopardized for the time that was essential to take off for my illness. If that would be the case then how long I am out for my disability is not relevant. I just want to bring this up and make sure that if the clock is ticking then I will be in very bad shape if I do not get released from disability soon.

 

At this time I can not be sure what my time frame is so I am vey concerned.

Expert:  Patrick, Esq. replied 2 years ago.
You do not technically become "unemployed" simply by becoming disabled, you're employer must actually release you from your position in order to be eligible to file a UE claim. If disability alone triggered the right to receive UE benefits, this would lead to the illogical result of employees being eligible to receive UE benefits whose employers had no intention of releasing them from their positions.

In regard to the base period used to calculate a UE claim, the EDD states: "When an individual's base period begins depends on when the UI claim is filed. The most recent 3-5 months before the claim is filed are omitted; therefore, the base period is the 12 months beginning some 15 to 17 months before the claim was filed." (See this link for the full publication: http://www.edd.ca.gov/pdf_pub_ctr/de8714b.pdf)

Accordingly, eligibility begins upon actually losing your position (not simply upon becoming injured) and the base period is calculated based upon when the claim is actually filed. However, a substantial amount of time would need to pass in order for eligibility to file on a claim to pass. In theory, it would take 15-17 months from the date of unemployment.

I hope that this adequately clarifies my previous response and makes it worthy of your "accept." I wish you the very best in this new year.
Customer: replied 2 years ago.

Thank you. I think that you misunderstood what I was trying to say but you did clarify some of the issues I had. I was "injured" and went out on disability, assuming that when I was well that I would have a job to come back to. I believe that the employer is obligated to keep a position open for no at least 6 months. I have just heard from my employer that I will not be able to come back to work due to downsizing.

I just want to make sure that when I file for unemployment that I will not have a problem filing.

Expert:  Patrick, Esq. replied 2 years ago.
It would generally be wise in this type of situation to obtain some sort of written confirmation from your former employer that you no longer have a position at the company. With some complicated exceptions, and employer is typically required to keep an injured employee's position open only for 12 weeks pursuant to the Family Medical Leave Act.

Please understand that I can't predict what will happen in regard to the outcome of your unemployment application because I am not your attorney and have not reviewed all the relevant facts and conversed with you in a confidential setting. That said, an individual would typically be eligible to receive unemployment benefits under the facts that you have described.

Again, I hope that this helps you and please kindly remember to "accept" my answer if it has been helpful. Best regards.
Patrick, Esq., Lawyer
Satisfied Customers: 7517
Experience: Significant experience in all areas of employment law.
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Patrick, Esq.
Patrick, Esq.
California Employment Lawyer
7517 Satisfied Customers
Significant experience in all areas of employment law.