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I was denied unemployment for excessive absences on approved time off. Do I have a shot for an appeal with doctors notes?

Spring, TX |

2 days approved time off a month in advance on an internal electronic approval system.
3 write ups for past absences within a 2 year period. None in 2014.

Monday-Doctor
Tuesday-Worked
Wednesday-Dentist
Thursday-Recovery from dentist
Friday-Worked

Let's make it more interesting... I was written up in October of 2013 for absence and suspended (not in anyway stating that I was your model employee) but broke my ankle in that time and was not able to return to work the day I was expected to. It was explained to me that I was not able to have any, whatsoever contact with my employer while suspended. Unfortunately, the break was so bad I had to wait 12 days prior to surgery for swelling to go down. The day I was supposed to go back was the day of surgery (all can be proven by medical records). I spoke to my employer about the situation prior to the time I was expected to return to work. Once I was in surgery my wife was harassed by my supervisor by three different phone calls requesting the the operating room fax over an excuse letter and to speak with me immediately after my surgery. It goes on from there but I was submitted for FMLA and covered till the day I was let go... The "MONDAY" appointment with my doctor was covered under FLMA.

Attorney Answers 3


  1. In order for your absences to be protected leave under ADA or FMLA it has to be for a serious health condition meeting the criteria of FMLA or ADA. Further you have to work for a qualified employer who is governed by these federal and state leave provisions. You will need to consult with a local employment attorney in Texas, and provide her/him with the facts regarding your employer and the nature of your actual medical condition to determine if any of these protected categories of leave apply. If they do not apply and if no other local state laws apply, your employer may discipline you for missing work. Talk to a local employment attorney. You can find one here on Avvo.com or by calling your local bar association.
    Best of luck!

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  2. It's free and finding a job is hard and you have earned it. Of course you should appeal. What’s the down side? The TWC appeals I have had success with are when 1) the employer has not treated other employees the same way for the same thing, and 2) when they have failed to follow their own progressive disciplinary or warning policies. You have the right to "subpoena" witnesses. Do. You have the right to submit evidence in advance. Do! If you have their disciplinary policy or employee handbook, it is good to use against them. If you don't, you may ask a co-worker to copy or print what you need before they get too intimidated to help. If you can afford it--you can have an attorney represent you. In my experience the have been phone hearings.
    If your employer has a termination appeals process, use that too. Maybe you can get your job back.

    This does not establish an attorney/client relationship. Dallas, Denton, Collin and Tarrant County, Texas practice area. Principal office located in Lake Dallas, Texas.


  3. You should appeal the decision. If your absences were approved then it is possible the employer failed to follow its own disciplinary procedures and that may justify receipt of unemployment benefits.

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