can i get unemployment if i have been fired for attendance due to pregnancy?

I am worried about being fired from my job. I have LOA, but I can’t get FMLA due to I haven’t been working at my job for a full year and I have tried several times. I am 6 months pregnant with twins and I have a hard time breathing, along with anemia and increased heart rate. Sometimes my pregnancy calls for me to call out of work, but I am afraid that too many call outside will cause me to lose my job.

Hi Worried,

I understand why you are concerned, but appreciate you are looking for answers now .. vs later.

Medical documentation can be so very useful for rebutting why a documented discharge for violations of an employer’s attendance policy, which may otherwise be sufficient to meet the burden of misconduct to deny UI benefits .. doesn’t fit the definition of misconduct… that stresses the willfulness and intent that definition depends on.

Medical documentation, is my primary advice to an employee because after the fact, they can use it as proof that they informed (made the employer aware) of not only a health issue, but the advice of their medical physician. Given UI case law about quits and discharges involving health issues, is full of a basic assumption reasonable people don’t ignore Dr’s advice in favor of their their own reasonable concerns about maintaining their employment with an unreasonable employer who expects employees to choose their job .. over the advice of a medical doctor.

The documentation from a doctor, along with written communications with the employer you’re trying to inform .. is what helps a claimant avoid, or fix an erroneous denial of UI benefits after a discharge .. should they need to appeal the initial separation determination.

I can’t help you with the FMLA thing. You’re right, it is the federal law intended to protect a person’s job for up to 12 weeks a year for medical problems of the employee, or potentially an immediate family member, but the employer needs to employ 50 or more people .. and the employee has to work somewhere around a year for an employer to be covered by the law.

But your current health condition also raises a conditional UI issue some employers are not above using to their own advantage, when the employee isn’t fully aware that TO COLLECT UNEMPLOYMENT BENEFITS, ONE MUST BE ABLE AND/OR AVAILABLE TO WORK to finally receive any weekly benefit.

Just document to prove later that you didn’t intentionally violate the employer’s attendance policy, but were absent only for medical reasons connected to your pregnancy which are in fact beyond your control .. and don’t forget your communications with the employer are for the purpose of prove you made your employer well aware of the pertinent reasons you were absent each time they still may try to write you up .. regardless of any orders from your doctor to the contrary.

Proving, or rebutting any facts about fault .. is all about taking control of the facts
that are in your power to control.

Chris

So im currently 5months pregnant and Ive been getting sick alot and always have alot of appts due to me being a high risk. And I did put in for intermediate fmla but the doctor only put down that i can work 4 hours three times a month and only 5hrs a week . So when i call out the whole day my job complains so much like they said if im out one more time im going to get fired. If i dont feel good how do they expect me to come in and work. Idk what to do and the doctor wants me to come in once a week now and they rake forever there. Can i get unemployment if i get fired?

Hi,
Did you mean to say your Dr. will only allow you to work 4hrs at a time and only three days a week. I ask, because the number you presented .. cannot be the restrictions your Dr. is placing on your ability to work, since they don’t add up, or at least make sense for an intermittent FMLA leave.

And, I don’t know what your typical work schedule is week to week, that your employer is “complaining” that you are not complying with how intermittent FMLA works.

But you said enough for me to know if I found myself in the same position .. I’d likely not be denied benefits, if the employer decided to fire me, because I would be counter documenting with purpose to not only rebut misconduct (attendance issues) as the cause for being unemployed, but that it was the employer not complying with FMLA guidelines .. or Dr. orders specifying the restrictions on my ability to work .. even if the leave time is being applied intermittently.

Being tired of it all is understandable, but it’s also can cause people to throw their hands in the air and not do the hard work to protect their own best interests .. while they are still an employee .. even those who are pregnant .. and can literally be discriminated against by employers .. while still employed.

I also got fired today for missing 5 days in the last 2 months I am currently 5 months pregnant. Told my former suoervisor 2 months ago that I was 3 months pregnant. Soon after I told her, her demeanor changed. She wasnt nice to me anymore.

Hi,

The question your comment raises for me, is what were the actual reasons/causes you missed five days of work over the last two months and whether you had prior warnings about your attendance letting you know another absent could result with consequences up to and including being terminated.

A supervisor who stops being nice to you, merely because they learned you were pregnant .. isn’t necessarily the best way to explain why you weren’t fired for absences that may of exceeded the employer’s attendance policy, when you need to explain why those absences were basically and reasonably, beyond your control.

What about intermittent FMLA, if the absences were due to medical problems with your pregnancy. Was that a possibility for you to protect your job .. or not?

Meg,
You need to choose which battleground (and you proposed more than one) has the most promise for you in relationship to an ability to get unemployment benefits.

As indicated, I’m not taking new questions via the website at this time, but I offer an alternative.

I also think it’s helpful to know how the claims adjudication process works in any given state.

Mass has a DUA Service Rep Manual which can be quite useful. I link to it on the UI laws page.

In the meantime .. if I were you, I’d contact my doctor and ask for some sort of documentation which asks for accommodation and possibly, helps you out with a per occurrence requirement the employer is now demanding.

When you read that DUA manual, pay close attention to the mention of a need to request a personal medical leave, if FML is not an option.

This is about at least being able to show you were trying to protect yourself from the cause of misconduct and a DCUA (discharge for unacceptable attendance), because non-attendance at work .. can have it’s own good and reasonable cause.

Chris

I am in Mass, 4 months preg & been at my company for 10.5 months. Ive been having a hard time w/this preg. Im high risk (several past miscarriages & over 35)& very anemic. My anemia is not caused by iron or b12 so my ob has sent to Dana farber cancer institute to meet w/a specialist to determine the cause &to arrange for a blood transfusion to get me through my pregnancy.

I missed no work for the first 2.5 months but these last few months (1.5) I have been out maybe 7 – 8 days. Most of this was due to the anemia my hemoglobin levels are very low causing extreme fatigue, headaches, & dizziness/lightheadedness.

I work in a commercial laundry facility (thousands of pounds of laundry are washed & dried daily) & they makes no effort to control the temperature or odor/air quality in the building. The odor is so bad, my boyfriend can smell it from across the street (when he drops me off)& it makes him gag & Regarding the temperature, it is usually 85+ in the building with no ventilation to the point where everyone walks around dripping sweat.

I understood the conditions when I started; however I wasn’t pregnant.The severe anemia is causing me daily headaches sometimes migraines. Now due to the combination of the work conditions & the pregnancy induced severe anemia complications, I’ve had to miss those 7-8 days. When I wake up with a bad headache/migraine (which Tylenol won’t help) ox companied by nauseous, throwing up & lightheaded, there is no way I can make it through a day at the laundry facility….Not w/the heat & odor in that place. 2 of the 7/8 days I was in the hospital due to dehydration (throwing up & sweating 8 hours at work didn’t help that).

Today, is the 2nd day of the second day I’m out due to being dehydrated and when I called to them, they told me I need a note for all my pregnancy related absences. But Like others I don’t call the doc anytime I don’t feel well. with that being said, I have notes for only about half of my absences.

So, now I’m nervous I’m going to return to work to get fired (even though I’m not on warning) and I’m worried if I can collect)

In addition to the work conditions mentioned above, Im also subject to constant dirty looks & rude remarks. When the big cheese (highest in the branch) comes into the office and says very loudly &!publicly “yeah I know that’s Megan’s job (that’s me) but she only works when she wants to, so I am not giving it to her … You do it”. everyone in the office laughs and jokes around about that while I take great insult. I start to contact HR but someone saw me on the computer submitting the form, ran and told him, so I get a bullsh**t apology. However since then the snide remarks and dirty looks continue. It makes me very uncomfortable. (Trust me I can’t afford to miss all these days (unpaid) so I’m not just blowing off work because I want to)

I know this is long but I wanted to explain in detail.

If I was terminated, would I be able to collect? Please help

I also work at a casino and am 6 months pregnant, as a high risk pregnant person i received doctors notes stating that i should be doig light duty work and non-smoking (smoke has been giving me migraines lately). I submitted this to my benefits department and they refuse to work with me because i haven’t been employed there for a year. They “so call” don’t look for light duty work for employees who have not been employed there for over a year. They did not let me go back to work until i got another doctor note releasig me of my restrictions. My employer said that if i didnt get released then i would get terminated. So i talked to my doctor and she agreed to give me the release form, but due to complications she’s goig to try it again in mid Feb. if my employer refuses again and i get terminated would i qualify for unemployment in wisconsin?! Please please help with solutions!!!

There really are no solutions for you until you become FMLA eligible.

Until there was the Family Medical Leave Act there wasn’t really any type of law for job protection whatsoever for someone suffering from an illness or a temporary medical condition requiring accommodation from the employer.

But, there is also the prospect of pregnancy discrimination to look into.

However, if none of this works out and you are placed on medical restrictions vs. a medical order to not work at all, then I don’t see any reason for you not to be able to collect unemployment if the employer refuses to accommodate and effectively makes it impossible for you to continue working there and comply with the restrictions.

The unemployment benefit eligibility condition that effects someone entitled but still unable to collect is being able and available for work.

Since I have no way of knowing when you will become FMLA eligible .. I’d say the employer is simply using a strategy they are free to use before that one year/1280 hour mark is reached and they really need to start being careful about how they try to get someone to quit.

Hope this helps.

Hello All,
I work as a CAR in MO. I am currently two months pregnant and have missed two weeks due to severe morning sickness ( hyperemesis gravidarum). My FMLA was denied they stated I do not have enough hours work although I have been employed for a year and several months. I received a call from my Sup saying I would be let go if I did not get my short term disability forms in in 24 hrs. I explained that the leave department informed me that short term disability is only for when I’m out on maternity leave for delivering my baby and would not cover the days I missed prior to my due date. He still insisted stating I did not apply for the correct leave. My UR department informed me there is no other leave I can apply for. If fired will I be able to get unemployment?

Depends on how you argue the facts and I think this situation relates back to whether the employer has mislead you about the criteria for qualifying for FMLA.

Might want to take a look at what constitutes discrimination based on pregnancy as well.

Get Doctor notes.

I work for a casino in Arizona. We have a 12 point system. I am at 9 points due to pregnancy sickness/issues. I haven’t been with the company long enough to qualify for flma. I got pregnant the same time I got hired (so about 6 months). I tried to talk to HR about my options but was told they don’t deal with pregnancy til the 8th month. Its getting harder for me to perform my duties. I am a custodian. I discussed what duties I felt comfortable doing with my direct supervisor but when the new schedule for the month came out he assigned me the exact opposite. I feel like they’re trying to push me out. He told me until I get a light duty note from my doctor he would expect me to perform as usual. Needless to say I got the letter. I have 3points left before I am terminated. I am trying not to miss cuz I need the income. Will I qualify for unemployment if I am terminated due to absences?

Since you have the light duty note from your doctor .. did you provide it to the employer and are they complying with those restrictions?

Absences are a different issue that the light duty as far as I’m concerned and should require you to get doctor notes as well .. if you want to be certain to be able to get unemployment if fired for attendance.

In the meantime .. find out what pregnancy discrimination consists of.

It’s your responsibility to protect your right to collect benefits now while you still have a job.

The best way to do that .. is to know what your other employee rights might be so you don’t get the wrong idea from your employer or the HR dept. about what you can and cannot expect.

Point systems suck!!! when they do not consider what an excused or unexcused absence really is.

So the best way to tell you what to watch out is to say .. always get a doctors note for your absences to cover your own ass.

I have had many complications during my pregnancy. I have 7 different FMLA forms in place, by 3 different doctors with my employer. All requested by my employer, because they do not believe my complications are related. My hours were lowered by my doctors, so my work used my FMLA time to compensate for the missing hours. (ie. I am supposed to work 36 hrs, I was lowered to 25, they use 11 hrs per week from my FMLA to make up the difference.)I was put on bed rest at 30 weeks for pre-term labor.

I have not yet been fired, but received a letter from HR stating my FMLA runs out mid November. I am not due until December. They sent another letter stating they would not hold my job after that time. My OB has now said when I am at 36 weeks, 2 weeks from now, he will release my restrictions because I can deliver at any time. I will only have 7 days of FMLA left at that time. I have no vacation, or other time off available. Can my work let me go if I do not return 7 days after the birth of my child, and if so can I collect unemployment? I live in Wisconsin.

Yes, they can if you have exhausted your FMLA, however you might be proactive about this problem and submit a request for a personal LOA before it gets to that point.

By the way I live in New Mexico…

Probably not .. because they an appeal to a board does not allow new evidence or testimony and a failure to adequately represent yourself at the first hearing is not grounds for appeal.

I’m sorry, but this is why preparing for the first hearing is so very important.

New Mexico Unemployment precedents

Hearing Representation

I am sort or a similar situation except where I worked we were on a point system & I was pregnant & accumulated points during my pregnancy due to being late or calling in from migraines that I was getting. I took a 3 mo. leave & I worked for two months & was fired for attendance. Our attendance policy is you get a .5 point off for being 16 min or more late & a get 1 point for calling in (So there’s a 15 min leeway for tardies). So before my maternity leave I had had 2 warnings & was on a decision making leave. I was told I had 2 points for a 6 month period & so far had 1 & .5 points accumulated & had .5 point left. After my maternity, 6 months had passed but they told way after I had been back that when I took my leave everything froze. So even though it was over 6 months I still had another month for my points to restart.
So one day I had clocked in but I guess it didn’t clock me in correctly & about an hr later I tried to ring someone up but I couldn’t because I wasn’t clocked in. Once I realized I wasn’t clocked in I wrote a clocking correction & wrote put in the time I had arrived: 9:52 am. A few days after turning in my clocking correction I was called into the HR office & was told that I fired because they had me on camera walking in at 9:59 & I had written 9:52. I was told me I was being fired for falsifying doc. & attendance violation. & even though she could “overlook” the falsifying doc that I would still have an attendance violation. BUT I was there at 9:52. When I had originally clocked in the clock said 9:52. I never saw the video & didn’t even think to ask. Also I should of still had a .5 point to use to make it to 2 points. I was never told it was NOT actually a 2 full points to use but only really 1 and .5 points. If I really had 2 points I shouldn’t have been fired after being tardy that last time since that would have equaled 2

I have already had my first appeal hearing & now know that I should of had someone to represent me because I had no idea what was going on & did not know what to say or ask. I was so nervous that I forgot to say things that I thought were important (such as most of my points were accumulated during my pregnancy)& to even ask about the video because they didn’t submit it as evidence. The HR person lied & said that she had offered me to see the video & that I declined but she never did
The judge did not decide in my favor & I was disqualified for misconduct at work. Now I owe lots of overpayment. I know you said it is very hard to win after the first hearing but do I even have a chance? I still have to write an appeal letter & don’t know what to say
I do not believe that I was “misconducting” at work. Most of my points that I had were from being tardy during my pregnancy. I always worked so hard & had great sales & scores for our weekly scorecards. I was a specialist,gave great customer service& I never took breaks(even when I was pregnant I never took any)

I know this post is old, but I’m going thru this right now. I’ve been with my company for 11 months now, end of this month will be my one year mark. I am 7 months pregnant and it is getting harder and harder for me to go into work. I have missed at least a day every week since I’ve been pregnant due to the illness, & leg pain. My manager told me that I need to provide a note every time I call out, I have provided a note with restrictions with my doctor saying that I will call in due to pregnancy illness & leg pain. But now its not good enough? He said I could get terminated because of missing days.. I’m worried because my baby is due in a couple months & I need the income. Would I qualify for unemployment?

Hi,

So you do have a doctor’s note with restrictions and you have provided it to the employer?

Yes you probably would be able to collect benefits, but I’m going to suggest Ana that you attempt to tough it out and try not to call in for the next month if your employer would have to provide FMLA at that time.

In addition, I suggest you take a look at what EEOC has to say .. just in case there is something there that could give you some ammo to take to HR if your company has such a department.

Fact Sheet about Pregnancy Discrimination

im worried about the same thing too …im 3months pregnant and miss at least once a week and some days leave early because of my vomiting and my sickness due to my pregnancy , and im scared im going to lose my job and wont be able to collect unemployment , i threw up today at work and felt like i had to force myself to stay because i need my income for my baby…if i got fired for this will i still be able to collect unemployment?

Doctor notes .. and I know some won’t like it .. but if you plan on using 12 weeks of FMLA toward the end or after your baby is born .. consider cutting that time short and tell the employer you would like to know about the possibility of intermittent FMLA now for morning sickness.

If FMLA isn’t a possibility, just make sure you call off properly and provide some medical documentation such as notes from your doctor.

If your morning sickness is short lived or confined to a certain part of the day .. ask the employer for an accommodation that might work .. like coming in later and staying later.

I am a physician assistant with a history of prescription pain med addiction and for which I was participating in a diversion program. Long story..had recent fall..sustained severe injury requiring surgery, 2 weeks in hospital and a prescribed regimen of narcotics. I was kicked out of the program due to this need to take medication “not allowed” in the program. this termination caused an immediate freeze on my license..immediate suspension. Well, this forced withdrawal caused the med board to suspend my license. My employer who LOVES me and fought HARD in my defense (all 10 partners going to bat for me) is now forced to fire me as i cannot work with a suspended license. Suspension is NOT described as punitive but as protective. Do I qualify then for Unemployment as i will be reluctantly fired..They want me, I want to be there..the patients love me. Or. is it long term disability ( as t will be more than one year). I prefer to file for unemployment benefits..but ultimately there are medical issues at the root of things ( whether you count substance abuse disorder, and the med board DOES, a medical/mental problem, at the the source of my license SUSPENSION, which has triggered my unemployer ‘s actions.

What state are you located in? It could be relative because some states actually have provisions which allow a voluntary quit for an illness and some states actually allow benefits if you quit to seek treatment for an addiction.

A provision depending on the state could influence the way a discharge is seen or possibly provide the alternative to quit rather than be fired if the loss of license was something beyond your control.

Although I do clearly, see an argument that a discharge under your circumstances would not be for misconduct by way of a “neglectful” and therefore, intentional loss of a required professional license .. I’d still feel more comfortable if I knew the state and could access some interpretive info.

The lack of license does not preclude you from other employment .. nor does disability status .. so being able and available shouldn’t be an issue.

Unemployment will require you to seek other work regardless of the license.

My questions have more to do with why the employer is “forced” to fire you if they love you rather than look into an alternative and temporary position for you which doesn’t require the license .. unless of course none is available or this will be a long term loss.

I think you should have probably used the main form to ask question. It has a space for the state name and it allows for more words to be written.

I AM GOING THREW THE SAME THING. I WAS CALLING OUT JUST ABOUT EVERY DAY BECAUSE I COULD NOT GET OUT OF BED DUE TO MORNING SICKNESS THEN IT GOT REALLY BAD FOR A WEEK STRAIGHT TO WHERE I COULDNT EVEN CALL INTO WORK SO THEY FIRED ME FOR NO CALL NO SHOW. NOW IM SITTING AT HOME WITH NO INCOME.

I’m going through the same thing. Which is unfortunate and they should be willing to work with you but due to the fact I have not been with the company for a year I cannot get any FMLA.

Maybe not, but you can request a personal leave of absence and you should.