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Infolawyer
Infolawyer, Lawyer
Category: Employment Law
Satisfied Customers: 53850
Experience:  Licensed attorney helping employers and employees.
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The company I worked for for the past 5 years was a

Customer Question

Hello Pearl,
The company I worked for for the past 5 years was a franchise. It was sold back to corporate as of a week and a half ago. They let go of 2 of our employees, so our staff went from 5 to 3. They also increased the expectations of my work hours go to 45 to 50 hours per week, I was previously doing 30 hours per week. My question in wether or not resigning from my position would be considered "good cause." In the past 9 months I have had two major surgeries on my right leg, one on my hip and a very invasive surgery on my ankle (where they went into the foot in two places at the same time) I have only just started to walk this past month after being restricted from any weight bearing at all for over 2 months. I am able to work, just not the expectations that they set forth. I have read the physical job requirements to my surgeon and she has stated that doing all they ask will aggravate my foot and slow the healing process considerably. So would resigning from my position in order to find a different one that would not impact my healing so severely be considered "good cause." And would I be able to collect unemployment while I search for a new job? Thank you for any help and assistance you can provide.
Jessica
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: Colorado
JA: Have you talked to a lawyer yet?
Customer: No, not yet.
JA: Anything else you think the lawyer should know?
Customer: I'm not sure, I guess just that the expectations have increased beyond what my healing process can handle and my doctor has documented this accordingly. Due to lack of employees in this area I do not qualify for FMLA, and with the restrictions I currently have the company is not able to offer "reasonable accommodations" for the position I'm currently in
Submitted: 3 months ago.
Category: Employment Law
Expert:  Infolawyer replied 3 months ago.

does company have a manual or policy handbook? are the reasons mentioned there?

Customer: replied 3 months ago.
they have a handbook, I'm not sure what you mean by "are the reasons mentioned there"
Expert:  Infolawyer replied 3 months ago.

did they violate the handbook in terminating?

Expert:  Infolawyer replied 3 months ago.

Handbook may provide reasons for termination, protocol, PIP, less severe punishment that must be followed first.

Customer: replied 3 months ago.
I have not been terminated, my first response to Pearl detailed my situation, I am inquiring as to wether or not resigning my position would be considered "good cause" because I cannot fulfill the physical job requirements of my position due to recovery from surgery. I am able to work, I just can't at the level they are asking. I'm wondering if by doing this I will still be able to collect unemployment until I can find a position suitable to my recovery needs.
Expert:  Infolawyer replied 3 months ago.

You want to avoid using words of resignation. You are in effect going on disability, constructively terminated, physically cannot continue and thereby not making a choice to leave. With such language you should qualify for benefits, and practically best to have a conversation and get company to agree not to contest,

Customer: replied 3 months ago.
They will not "constructively terminate" me as it is illegal to terminate someone for medical reasons. The only option they can offer is a Non-FMLA, non paid leave of absence. This is not feasible for me as I need to be bringing in some income, even if it's not as much as i am now. So I am unsure then how to proceed. If I can't "resign" and they won't terminate me, how do I handle this so that I can collect unemployment benefits while I search for a suitable job
Expert:  Infolawyer replied 3 months ago.

Can you seek disability leave? You can file for benefits and note the company did not terminate for cause and you didnt resign. It has failed to accomodate and provide suitable work you can perform.

Customer: replied 3 months ago.
I cannot file for temporary disability as I am able to work, just not at the capacity they are requiring.
I don't feel as if I've really received the answer I was originally looking for, which is if I would qualify or not. I do realize that the state takes it on a case by case basis, but my goal in coming to your site and paying the fees was to get an answer on if this is a "good cause" case.
Expert:  Infolawyer replied 3 months ago.

If you file you should qualify. There is no termination for cause. You also would not say you are resigning. You simply cannot perform the tasks due to illness and accordingly should qualify for benefits. A lawyer may even succeed in negotiating a severance.

Expert:  Infolawyer replied 3 months ago.

Kindly let me know if that is clearer and acceptable. Thank you.

Customer: replied 3 months ago.
I don't believe a severance would be applicable to me as I have only been with them for a week, as I said in my original inquiry I previously worked for a franchise owner and the business was then sold back to corporate. That is the original problem, my franchisee allowed me to keep a 30 hour work week, the corporation that has assumed ownership will not. But I digress, as I said I don't believe a severance would be applicable after only a week.
How do I go about leaving it with my company then? Since they can't offer reasonable accommodations their only alternative is to out me on an indeterminate leave of absence. How do I explain this to the people at unemployment/Labor office?
Expert:  Infolawyer replied 3 months ago.

You explain your medical condition, that is a material change in employment (hours), and you cannot continue as much as you wish you could as you are physically constrained.