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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 19023
Experience:  Employment/Labor Law Litigation
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I filed a request Term Disability due to debilitating

Customer Question

I filed a request for Short Term Disability due to debilitating migraines. I had previously been warned to not miss work without communicating; however, my migraines make it impossible to speak or even use a computer/phone.
I received an email today advising that I'd been terminated while my STD claim is still pending. Do I have any recourse or possibility to claim unemployment benefits?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year ago.
Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance. Short term disability is insurance that financially protects your time off from work. However, it is not a legal protection from missing work. The law that protects your right to miss work due to medical issues is called the FMLA and it only has limited application. It only applies to employers with at least 50 employees. It only applies to employees that have worked at a location for at least a year. It only applies to serious health conditions. Not, migraines have found favor by some courts and disfavor with others, as a basis for receiving FMLA leave, so it's not certain that it would apply. If the FMLA is supposed to apply, and your employer never notified you about it, then you can file a complaint with the Department of Labor alleging FMLA hindrance and discrimination. If FMLA was not supposed to apply, the termination would actually be legal. As for the unemployment, if you can't work you can't get unemployment. Unemployment is a supplement for individuals that are ready, willing and able to work, and who are actively seeking work. If you were absent from work, that is necessarily evidence that you can't work. If you can work presently, then you can certainly apply and state that you were terminated at no fault of your own. You'd have to medically establish the condition. If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Also, feel free to request me in the future, if you have questions concerning a different matter.
Customer: replied 1 year ago.
The work location and circumstances (3-4 hour round trip commute and fluorescent lighting) were contributing to the frequency and severity of the migraines. I'd asked for an accommodation but hadn't received any response other than, we could discuss it in September, after 6 months in the role.I did realize I'm not eligible for FMLA. I'm capable of work, just when accommodations are made. I've found some part time work but it's no where near what I made at my last position.
Expert:  Allen M., Esq. replied 1 year ago.
If you can work some where, then you can file for unemployment. You just have to be able to say that you are ready, willing and able to work, and to accept work within the restrictions. If the restrictions are too great, that would be an issue, but most jobs don't have that sort of commute.
Expert:  Allen M., Esq. replied 1 year ago.
Hello, I wanted to check in and make sure that there was not any additional information that you required. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.