Unemployment eligibility after exceeding FMLA limits

UPDATED: Sep 30, 2022

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Unemployment eligibility after exceeding FMLA limits

Can I collect Unemployment if I am terminated for exceeding FMLA 12 weeks limit. Also, my employer put me on leave of absence for the past 4 months so can they count that as part of the 12 weeks of FMLA time? If I use vacation time, can that time also be counted toward FMLA time?

Asked on May 10, 2016 under Employment Labor Law, Ohio


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

An employer may not count leave voluntarily given to you prior to applying for FMLA leave against the FMLA leave; FLMA is in addition to and over and above any other leave the employer may choose to give you (obviously, they don't have to give you any additional leave). FMLA is leave you are entitled to under the law, and so it is a right you may exercise regardless of other leave your employer may or may not choose to give you.
If any employer had a policy in place before you took FMLA leave, that you had to use vacation as part of the leave, in that case, they could make you use vacation days to "pay for" some of your FMLA leave--the law specifically lets them do this. So if you had 2 weeks vacation and took 12 weeks FMLA, you get 2 weeks paid and 10 weeks unpaid leave. But the policy had to be in place before you took the leave; if not, then your vacation time should be in addition to FMLA, unless you voluntarily choose to use it for some of the leave, to get paid.
If you are absent after you run out of vacation, FMLA, etc., then that is an unauthorized absence and if you are fired for it, that is a "for cause" firing and you would not be eligible for unemployment benefits.

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