Can You File for Unemployment During a Leave of Absence in New York?

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Workers on a leave of absence, such as a maternity leave, do not qualify for unemployment.
Workers on a leave of absence, such as a maternity leave, do not qualify for unemployment. (Image: Keith Brofsky/Valueline/Getty Images)

In New York as in all states, unemployment insurance helps employees who have lost their jobs. To qualify for benefits from the New York Department of Labor, a person must be separated from her company. Leaves of absence are usually voluntary and do not constitute a separation. In fact, leaves are usually the result of an understanding between employer and employee that the employee will return to her job. Because someone on a leave of absence technically has a job, she does not qualify for New York unemployment insurance.

FMLA Leave

Workers who leave work for medical reasons, including necessary surgeries, illnesses, maternity leaves or to deal with family issues, such as a sick child or a death in the family, are protected by the federal Family and Medical Leave Act. They can take up to 13 weeks off work with a guarantee that their jobs will be waiting for them. Although workers on FLMA do not always receive pay, they are still considered employees of their companies and cannot qualify for unemployment insurance.

Unpaid Leaves of Absence

People arrange for time off work for a variety of reasons. Some take sabbaticals while others take extended vacations. Usually these leaves of absences are considered unpaid time-off. However, so long as an employer has agreed to the time off and said that an employee can return to work after the leave, there is no legal separation and New York unemployment benefits are not possible.

Termination

If a worker is on an arranged leave of absence at the time her company faces hardship and she receives notice that she has been laid-off, then she has been separated from her job through no fault of her own. The fact that the worker was on a leave is not material. In this situation, the New York Department of Labor is likely to grant her unemployment insurance benefits.

At-Fault Termination

New York unemployment insurance is available to people who lost their jobs through no fault of their own. Those who are fired for just cause, such as gross negligence, illegal activity, unethical behavior, failure to show for work or insubordination cannot usually receive benefits. A person who takes an unpaid leave of absence and does not return to work may be terminated for job abandonment -- which is usually considered the worker's fault. In this situation, the Department of Labor is unlikely to approve unemployment benefits.

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