Fired for my mental illness. Can I get unemployment?

People assume that being fired means no unemployment. In California the rule is narrower: being fired bars benefits only if it was for "misconduct," and the regulations define that word in a way that leaves most illness-driven failures outside it.

The short answer: often, yes. Where the separation was a firing, a person is disqualified only if "he or she has been discharged for misconduct connected with his or her most recent work,"¹ and the law starts from your side: "An individual is presumed to have been discharged for reasons other than misconduct in connection with his or her work … unless his or her employer has given written notice to the contrary to the department … setting forth facts sufficient to overcome the presumption." The statute adds that "the presumption provided by this section is rebuttable" — it is a starting point, not a verdict.¹ Misconduct exists only if "all of the following elements are present": you owed "a material duty to the employer," there was "a substantial breach of that duty," "the breach is a willful or wanton disregard of that duty," and it "injures or tends to injure the employer's interests."² And the regulation says what is not misconduct: "Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertence or ordinary negligence in isolated instances or good faith errors in judgment or discretion are not misconduct, except that in cases of ordinary negligence, misconduct may be found where the claimant has been previously warned or reprimanded for prior similar acts of ordinary negligence and has the ability and capacity to perform satisfactorily." Then the sentence that matters most here: "prior warnings or reprimands, however, do not convert to misconduct an employee's failure to perform satisfactorily due to inability or incapacity."² An illness that made you unable to perform is ordinarily incapacity, not willfulness. The other side of the ledger: for the weeks you claim, you must be "able to work and available for work,"³ though a week interrupted by "a physical or mental illness or injury" is paid one-seventh for each day you were "available for work and able to work."⁴

The word that decides it

"Misconduct" is a term of art. All four elements must be present,² and the third — "a willful or wanton disregard of that duty" — is where mental illness matters. The regulation's list of things that are not misconduct includes "failure in good performance as the result of inability or incapacity," and it adds that warnings do not turn incapacity into misconduct.² "Misconduct is not established merely because an employer has and exercises a right to discharge an employee."² An employer may lawfully fire you for poor performance; that does not make the performance misconduct.

The performance regulation says it again: "Ordinarily inability or incapacity to perform the job or inefficient performance is not misconduct." Note the word "ordinarily": it becomes misconduct where the failure "is the result of circumstances within his or her control and he or she does nothing to improve," or where the employee "previously demonstrated the ability to do better, work performance has substantially deteriorated, and there is no reasonable explanation for the deterioration."⁵ A documented depressive episode is the kind of explanation that element contemplates; whether EDD accepts it on your facts is a factual question, so bring the documentation. Can I be fired for taking mental health leave? →

Absences and lateness

Most mental-health firings are about attendance. An unapproved absence is misconduct if either of two conditions exists: the employee "did not have a real, substantial, and compelling reason for, and continuing during the period of, the absence … and the employer has not condoned the employee's absence by failing to warn or reprimand the employee if prior similar unexcused absences from work have occurred," or the employee "has not … notified the employer of the employee's absence from work and the reasons for the absence, where notice to the employer is reasonably feasible, and there is no real, substantial, and compelling reason to excuse the failure to give such notice."⁶ So you need both halves: a compelling reason defeats the first condition, notice defeats the second, and either condition on its own is enough for misconduct. Two additional protections sit in the same rule — an employer that never warned you about earlier similar absences may have condoned them, and "an isolated instance of a short period of unexcused absence for the first time due to an employee's good faith error in judgment" is excluded outright.⁶ The regulation's own comment: "an ill employee should tell the employer when the employee expects to recover and return to work, or advise that the employee can return to work only when released by a doctor if such is the case and promptly inform the employer of any change in the circumstances as to return to work."⁶

Tardiness follows the same logic: "compelling reasons for tardiness regardless of the number of prior instances of tardiness, reprimands, or warnings" are not misconduct, and "if a claimant has a compelling reason for his or her tardiness, his or her discharge cannot be for misconduct, regardless of previous instances of tardiness or prior reprimands and warnings."⁷ Whether a symptom is "compelling" is a question of degree; "mere personal inconvenience, failure to allow ample traveling time to work, oversleeping, or missing the bus are not reasonable excuses for repeated tardiness," and "occasional or isolated lapses of tardiness without previous reprimands or warnings" are not misconduct at all.⁷

Substance use

Where the firing was for intoxication, the regulation carves out compulsion: a discharge "is not for misconduct due to intoxication or the use or consumption of intoxicants if the intoxication-induced behavior was the product of an irresistible compulsion to use or consume intoxicants or a total inability to abstain from the use or consumption of intoxicants, or if the use or consumption of intoxicants was permitted or condoned by the employer."⁸ An "intoxicant" includes controlled substances "when not medically prescribed by a licensed physician for medical treatment"⁸ — so medication taken as prescribed by a physician for medical treatment falls outside it, though the definition is introduced with "includes" and is not a closed list. ADHD and alcohol or cannabis →

The employer's burden, and the interview

The presumption runs in your favour, and the employer overcomes it only by giving the department written facts sufficient to do so, under section 1327.¹ Separately, section 1030 lets an employer "within 10 days after mailing of the notice, submit to the department any facts within its possession" about the separation.⁹ Employer silence helps you; it does not stop EDD investigating. EDD's own words: "If you are fired, your employer must prove there was misconduct."¹⁰ EDD will "either send you an email questionnaire, mail you a Request for Eligibility Information (DE 4365FF) to complete, or schedule a phone interview."¹⁰

Able and available

Benefits are weekly, and each week you must have been "able to work and available for work."³ A week in which you "become unable to work due to a physical or mental illness or injury for one or more days" is paid "at the rate of one-seventh the weekly benefit amount payable for that week for each day which he is available for work and able to work."⁴ If you are not able to work at all, unemployment is the wrong programme and State Disability Insurance is the right one. Can I get paid during mental health leave? →

What to do

• File. Do not decide for EDD that you are disqualified; the presumption starts in your favour, even though it is rebuttable.¹
• At the interview, describe incapacity, not choice. "I was unable to perform because of a diagnosed condition" tracks the regulation's language; "I couldn't be bothered" tracks misconduct.² ⁵
• For absences, show the reason and the notice. Dates, symptoms, and how and when you told the employer.⁶
• Bring documentation. A treating clinician's note that you were ill on the dates in question is evidence of a compelling reason and of incapacity.² ⁶
• Claim only the weeks you were able and available, and disclose days you were not; the statute pays the rest of the week.³ ⁴
• If denied, appeal. The Notice of Determination carries the appeal deadline.

Worked example

A bookkeeper with major depression misses eight days over two months, calling in each morning, and is fired for attendance after two written warnings. Her employer tells EDD she was discharged for misconduct. At the interview she explains the diagnosis, the dates, the calls, and her doctor's note. Each absence had "a real, substantial, and compelling reason" and she "notified the employer … with reasonable promptness," so neither condition for attendance misconduct is met;⁶ the warnings do not convert incapacity into misconduct.² On those facts the attendance-misconduct test fails, and the firing does not disqualify her.¹ In the third week of her claim she is too ill to work on two days and says so; that week pays one-seventh for each of the five days she was available and able — five-sevenths, rounded up to the next whole dollar.⁴ The other weekly requirements still apply.³

Q&A

Q: I was fired for yelling at a customer during a manic episode. Misconduct? A: The elements require "a willful or wanton disregard" of a duty.² The argument is that an acute episode negated the willfulness — but no cited regulation says so outright (the express volition carve-out, section 1256-37(c), is about intoxicants), so it will turn on the medical evidence EDD asks for.

Q: Do I have to tell EDD my diagnosis? A: Nothing requires you to name it, but the reason for the absences or the performance is what the regulations turn on; a clinician's note that you were ill on the dates is the evidence those tests are built around.⁶

Q: My employer says I "never told them" I was ill. A: Notice is one of the two attendance tests, "where notice to the employer is reasonably feasible."⁶ Phone logs, texts and emails are the evidence.

Q: I was too ill to work at all for a month after the firing. A: Unemployment requires that you be able and available each week;³ for a period of total incapacity, State Disability Insurance is the programme. Can I get paid during mental health leave? →

If you quit rather than were fired, the test is different and it is on its own page. Can I get unemployment if I quit for my mental health? →

Keeping coverage after the job ends: I lost my job. Can I keep my therapist? →

Our therapist directory: See its current status →

Sources

1. Cal. Unemployment Insurance Code §1256 — "An individual is disqualified for unemployment compensation benefits if the director finds that he or she left his or her most recent work voluntarily without good cause or that he or she has been discharged for misconduct connected with his or her most recent work"; "An individual is presumed to have been discharged for reasons other than misconduct in connection with his or her work and not to have voluntarily left his or her work without good cause unless his or her employer has given written notice to the contrary to the department as provided in Section 1327, setting forth facts sufficient to overcome the presumption. The presumption provided by this section is rebuttable" — california.public.law.
2. 22 Cal. Code Regs. §1256-30, "Discharge for Misconduct—General Principles" — (b) "Misconduct connected with his or her most recent work exists for an individual's discharge if all of the following elements are present: (1) The claimant owes a material duty to the employer under the contract of employment. (2) There is a substantial breach of that duty. (3) The breach is a willful or wanton disregard of that duty. (4) The breach disregards the employer's interests and injures or tends to injure the employer's interests"; (d) "Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertence or ordinary negligence in isolated instances or good faith errors in judgment or discretion are not misconduct, except that in cases of ordinary negligence, misconduct may be found where the claimant has been previously warned or reprimanded for prior similar acts of ordinary negligence and has the ability and capacity to perform satisfactorily. Prior warnings or reprimands, however, do not convert to misconduct an employee's failure to perform satisfactorily due to inability or incapacity"; (e) "Misconduct is not established merely because an employer has and exercises a right to discharge an employee" — law.cornell.edu.
3. Cal. Unemployment Insurance Code §1253(c) — eligible for a week only if "He or she was able to work and available for work for that week" — california.public.law.
4. Cal. Unemployment Insurance Code §1253.5 — "if an individual is, in all other respects, eligible for benefits under this part, and such individual becomes unable to work due to a physical or mental illness or injury for one or more days during such week, he shall be paid unemployment compensation benefits at the rate of one-seventh the weekly benefit amount payable for that week for each day which he is available for work and able to work"; "The individual shall not be entitled to unemployment compensation benefits for any day during such week which he is unable to work due to such physical or mental illness or injury" — california.public.law.
5. 22 Cal. Code Regs. §1256-38, "Discharge for Misconduct—Manner of Work Performance" — (a) "An individual's failure to perform work properly or neglect of duty is willful and misconduct if he or she intentionally, knowingly, or deliberately fails to perform, or performs in a grossly negligent manner, or repeatedly performs negligently after prior warning or reprimand and in substantial disregard of the employer's interests"; (b)(1) "Ordinarily inability or incapacity to perform the job or inefficient performance is not misconduct"; "if an employee's inadequate performance is the result of circumstances within his or her control and he or she does nothing to improve the performance, there is a willful failure to perform adequately which is misconduct"; "An employee's inefficiency may be misconduct if he or she previously demonstrated the ability to do better, work performance has substantially deteriorated, and there is no reasonable explanation for the deterioration" — law.cornell.edu.
6. 22 Cal. Code Regs. §1256-31, "Discharge for Misconduct—Absence from Work" — (c) "an employee who is discharged by the employer due to the employee's absence from work without prior approval of the employer is discharged for misconduct if any of the following conditions exists: (1) The employee did not have a real, substantial, and compelling reason for, and continuing during the period of, the absence from work of such nature that a reasonable person genuinely desirous of retaining employment would have been absent from work, and the employer has not condoned the employee's absence by failing to warn or reprimand the employee if prior similar unexcused absences from work have occurred. (2) The employee has not, personally if reasonably possible or by a reliable agent and with reasonable promptness under the circumstances, notified the employer of the employee's absence from work and the reasons for the absence, where notice to the employer is reasonably feasible, and there is no real, substantial, and compelling reason to excuse the failure to give such notice"; comment, "an ill employee should tell the employer when the employee expects to recover and return to work, or advise that the employee can return to work only when released by a doctor if such is the case and promptly inform the employer of any change in the circumstances as to return to work" — law.cornell.edu.
7. 22 Cal. Code Regs. §1256-40, "Discharge for Misconduct—Tardiness" — (d)(1) not misconduct: "(B) Compelling reasons for tardiness regardless of the number of prior instances of tardiness, reprimands, or warnings"; (d)(2) "If a claimant has a compelling reason for his or her tardiness, his or her discharge cannot be for misconduct, regardless of previous instances of tardiness or prior reprimands and warnings … Mere personal inconvenience, failure to allow ample traveling time to work, oversleeping, or missing the bus are not reasonable excuses for repeated tardiness" — law.cornell.edu.
8. 22 Cal. Code Regs. §1256-37, "Discharge for Misconduct—Intoxication and Use of Intoxicants" — (c) "An employee's discharge is not for misconduct due to intoxication or the use or consumption of intoxicants if the intoxication-induced behavior was the product of an irresistible compulsion to use or consume intoxicants or a total inability to abstain from the use or consumption of intoxicants, or if the use or consumption of intoxicants was permitted or condoned by the employer"; (d) "intoxicant" includes "(2) Any drug or other substance included in Sections 11054, 11055, 11056, 11057, and 11058 of the California Health and Safety Code, when not medically prescribed by a licensed physician for medical treatment" — law.cornell.edu.
9. Cal. Unemployment Insurance Code §1030(a) — an employer entitled to notice of a claim "may, within 10 days after mailing of the notice, submit to the department any facts within its possession disclosing whether the claimant left the employer's employ voluntarily and without good cause or left under one of the following circumstances: (1) The claimant was discharged from the employment for misconduct connected with their work" — california.public.law.
10. Employment Development Department, "Unemployment Eligibility Requirements" — "If you quit your job or are fired, we will need to check your eligibility. We will either send you an email questionnaire, mail you a Request for Eligibility Information (DE 4365FF) to complete, or schedule a phone interview. If you quit, you need to show that you had a good reason. If you are fired, your employer must prove there was misconduct" — edd.ca.gov.

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