need advice New York New York

[beefhotlink]

Ill try and make this long story short.

I was taken out of work in feb due to back injury. my position was secured due to the FMLA and then my full time position was bumped to a releif position when FMLA was up. I was told that my position was going to terminated on aug 10 and that I would have thirty days to decide if I wanted to keep my position. I received a return to work notice on aug 30. I notified my lawyer who told me to let my employer know I have a RTW notice and that if they would not take me back to file for unemployment. I notified my employer the same day and asked if I could be accomadated with my restrictions. My employer told me to give them a few days to see if they could find a position for me. My employer called me a week later and told me that they could not accomadate me and that I should apply for long term disability. I told my employer that i needed a job now because I have a kid on the way. I told my employer I was going to file unemployment and how should i go about doing it. My employer told me that i needed to cash out all of my vaction/sick time and e-mail her letter saying i resign my position. I did so and then filed unemployment.

I was denided unemployment because " you quit your job without good cause- reason- you quit your job because your employer was unable to accomodate your restrictions and you decided not to extend your leave to continue as an active employee. your employee offerd you the ability on 8/12/10 to go on long term disability and continue as an employee. You did not take actions to protect your job by taking steps to remain an active employee. under unemployment insurance law, your quit is disqualifying."

first, this notice states that my position was going to be terminated on 8/12/10 and therfore would not remain an employee at the agency.

I did take the nessasary step to secure my position but was unable to do so because THE EMPLOYER WOULD NOT ACCOMADATE my restrictions. ( my doctor stated that my restrictions would not be lifted and that I should find a different job.)

even if I did apply for long term disability I would not be considered an active employee because I could not preform the minimum job duties required.

I have been seeking employment within my restrictions and filed an appeal.

How should i represent my case?

would my doctors telling me to file for VESID and look into a different career a good enogh reason to quit?

Im confussed and need guidence. Any replyes would be great.

[Betty3]

The problem is you sent an e-mail saying you resign. You generally don't get
UI benefits when you quit/resign.

You said you appealed. All you can do is tell the truth. Also, in order to get UI you
must be ready, willing & able to work/looking for work.

Good luck.

[beefhotlink]

I am ready willing and able. i have been seeking employment and keeping a work search journal. The reason I sent my resignation letter is because my employer told me I had to cash out my benifits for UI.

I think that asking my employer what i needed to do to file for UI really screwed me. When I go to court and tell the judge that I notified my employer of my interest in obtaining UI benifits and what my employer recommended do you think that he will see that the employer set me up so that I would not receive benifits?

for example: Me- What do I have to do to file for UI benifis?
Employer- Send a letter of resignation to cash out your sick/vacation time.

What about my doctor saying i need to get a different carrer and recommended vocational training?

[Betty3]

The employer doesn't decide who gets UI - it's the state no matter
what your employer tells you to do. They are allowed to appeal the
decision though if it goes against them.

As noted previously, tell the truth & good luck to you.

[CAIW]

I did take the nessasary step to secure my position but was unable to do so because THE EMPLOYER WOULD NOT ACCOMADATE my restrictions. ( my doctor stated that my restrictions would not be lifted and that I should find a different job.)

There are some other issues here... unrelated to your UI difficulties.
Your Dr said in his report you should be seeking a different job. As such, your employer is required under ADA/EEOC to engage in the interactive process in an attempt to determine if a reasonable accommodation may be provided, if requested, and you have a qualifying disaability. If that's not possible, the ER may have to show a financial hardship. That wouldn't be known until the process is attempted/completed.

As a rule, these issues are not intentially overlooked, but because the ER and the IW are not aware of the mandates.

As you were receiving WC benefits, unless there is significant wage loss, it's doubtful you would be eligible for any benefits under the STD/LTD plan. Nor would your ER/HR rep have that knowledge or make the determination.

What about my doctor saying i need to get a different carrer and recommended vocational training?

Aside from the above... that Dr statement kinda relieves your ER from bringing you back to work...(?) If you returned to work, you wouldn't be eligible for VR services.

Understandable your situation with a 'kid on the way', however you need to choose which course you'd like to pursue here... reasonable accommodation to RTW with your pre injury ER,
VR services which would likely preclude you from actively seeking employment, or, appealing the UI decision after a voluntary resignation. (sounds like a pretty astute HR person... nice step to avoid the UI award)

do you think that he will see that the employer set me up so that I would not receive benifits?

Doesn't really matter what anyone thinks... there are no "average" or "norms'' in a UI appeal. You'll just have to wait this one out.

[Betty3]

Your Dr said in his report you should be seeking a different job. As such, your employer is required under ADA/EEOC to engage in the interactive process in an attempt to determine if a reasonable accommodation may be provided, if requested, and you have a qualifying disaability. If that's not possible, the ER may have to show a financial hardship.

Per OP's first post: "I notified my lawyer who told me to let my employer know I have a RTW notice and that if they would not take me back to file for unemployment. I notified my employer the same day and asked if I could be accommodated with my restrictions. My employer told me to give them a few days to see if they could find a position for me. My employer called me a week later and told me that they could not accommodate me and that I should apply for long term disability."

It seems employer tried but "could not" accommodate the restrictions though I don't know if it would have been a financial hardship to come up with an accommodation.

[CAIW]

Thanks Betty...
I think there is some confusion here as the OP stated

. I received a return to work notice on aug 30. I notified my lawyer who told me to let my employer know I have a RTW notice and that if they would not take me back to file for unemployment.

but later provided additional info as...

( my doctor stated that my restrictions would not be lifted and that I should find a different job.)

(and then)...What about my doctor saying i need to get a different carrer and recommended vocational training?

The ER isn't really required to address RTW, or reasonable accommodation as the treating physician recommended VR services, and another profession.
Doesn't appear the ER is actually out of line here... can't really tell based on the IW info., as it's somewhat fuzzy.

Can't tell if the reasonable accommodation is at issue here, or actually providing a new job outside the prior profession/job functions...as recommended by the Dr.
ER is not required to hold a job, or create a new job for a returning IW with recommendations for VR services.
Looks like the ER may have gone beyond any mandates in attempting to bring this IW back to work.

That doesn't answer the UI question however, that will go to appeal and state decide the issue.

I don't know... maybe I'm reading too much between the lines here..

[Betty3]

Truthfully, the thread/posts by OP were somewhat confusing to me also.

Re the UI, OP will have to see how the appeal goes. We can't say.

[StevenNY]

As you go ahead with the appeal process you may want to look over this useful guide on how to represent yourself in UI hearings: http://www.mfy.org/facts_other/Unemp...ngHandbook.pdf

Best of luck and try to tell your side of the story as best as possible.