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Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5299
Experience:  Extensive experience representing employees and management
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I have been off work for a personal medical issue and have

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I have been off work for a personal medical issue and have used all FMLA time. I sent a doctor's note extending my medical disability for another 30 days. My employer responded by email with this response:

"As you are aware, your FMLA ended Friday, June 28, 2013. In addition, you have exhausted all of your leave accruals as of June 7, 2013. Therefore, unfortunately, we will be unable to continue to hold open your current position of Employee Benefits and Safety Specialist as this position has been without your service since April 17, 2013.
We want to do what is in your best interest, Pat, so please advise if you wish to resign or if you wish for CDR to terminate your employment relationship due to inability to return after the exhaustion of your FMLA leave."

What are the consequences of the choices my employer has given me?

1. Resign - I don't qualify for future unemployment benefits once I am able to work again?

2. Termination - Inability to return to work after exhausting FMLA leave. Is this considered a voluntary quit or being fired?

3. Not responding to employer's email - Would this be considered job abandonment?

Thank you

JD 1992 :

Hello and thank you for contacting Just Answer. I am an expert here and I look forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification.

JD 1992 :

I'm sorry, I just realized this was a CA employment law question so I will have to opt out and recategorize it. No need to reply to this, someone should be with you in a little while.

Hello and welcome to JustAnswer.

Since your question was a California Employment Law question it was just transferred to this category. I am a California Employment Law expert and will be happy to assist you further.

My goal is to provide you with excellent service today, so please let me know if you have any follow up questions.

1. Resignation

Since your resignation is 'forced,' in that your employer will be terminating the employment relationship whether you resign or not. It would not affect your ability to receive unemployment benefits as it would be considered the same as if your employer has terminated you.

Since you would still be considered to have been terminated through no fault of your own, you would be entitled to unemployment benefits. If you are at all concerned, you could get your employer to sign a statement that this resignation is in lieu of termination and that your employer is actually the one terminating you without cause.

That way you can say you resigned the position and not miss out on future unemployment benefits if/when you are able to work again.

2. Termination

Termination is considered being terminated not a voluntary quit. In your situation you are definitely not voluntarily not returning to work. You are unable to return to work due to your medical issues.

I am not sure of the nature of the personal medical issues you are having, but it is possible that you would qualify as being disabled under the ADA and Fair Employment and Housing Act. That would mean that your employer would be obligated to provide you with a reasonable accommodation, as long as doing so would not impose an undue burden on your employer.

3. Not Responding

Your employer has already terminated you by this email, even though they are giving you the 'option' of resigning. It wouldn't be considered job abandonment if you don't respond since your employer has already stated that your employment is being terminated since you are not returning from FMLA leave, so there is no job for you to abandon.

Again, since my goal is to provide you with the best service today, please don't hesitate to ask any follow up questions.

If you don't have any, please remember to rate my answer positively so I get credit for my work.

Thanks and best of luck!

Joseph, Lawyer
Satisfied Customers: 5299
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you



I'm not sure if I made this clear, but I would suggest that you 'resign,' since you would then be able to tell future potential employers that you resigned, while ensuring that you will be eligible for unemployment benefits when you are able to return to work.


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Thanks and best of luck!





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