Voluntary Quit VQ 285

Leaves of Absence

This section discusses leaves of absence, one of the more difficult concepts in Unemployment Insurance law because of all of the combinations and possibilities that exist. Leaves of absence may be formal or informal; and may be initiated by either the claimant or the employer. The unemployment insurance claim may be filed either during the leave or after the leave has ended, sometimes with differing results. It is also necessary to determine the cause of the claimant's unemployment as of the time the claimant files the claim. (Refer to MC 285 if the claimant was discharged for failing to return from a leave of absence or for obtaining a leave under false pretenses.)

A. General

Leaves of absence may be classified as "formal" or "informal" for Unemployment Insurance purposes. Title 22 defines a "true" leave of absence as a leave which does not terminate the employment relationship. However, the claimant and employer generally refer to a "true" leave of absence as a "formal" leave, meaning all the formalities for a true leave have been met. "Formal" and "true" leave of absence are used interchangeably in this section. A formal, or true, leave of absence does not sever the employment relationship, but an "informal" leave does.

1. The "True" or "Formal" Leave of Absence

   Title 22, Section 1256-16 (b), provides:

   A true leave of absence exists if the employer and the employee mutually agree that the employee will return to his or her work after a period of absence and that the employment relationship is not terminated although the performance of services is suspended for the period of the absence from work.

   As indicated above, then, the "true" leave of absence is one in which the claimant and employer have formalized the leaving of work by:

   • Mutually agreeing that
   • The claimant is expected to return to work at the end of the leave, and the employer is expected to return the claimant to work; and
   • The employment relationship is temporarily suspended, but not terminated.

   All three conditions must be present for a finding of a true leave. If all three conditions are not present, a "true," or formal, leave does not exist.

   Of the "true" leave, Title 22, Section 1256-1(e)(2), provides:

   Although an employee neither performs services nor receives wages during an authorized true leave of absence . . . the employment relationship continues because the work will resume at a later date, and there has been no termination of employment . . . . A leaving of work occurs when an employee voluntarily commences a true leave of absence. If the employer is unable to return the employee to his or her work upon the expiration of a true leave of absence, the employment is terminated at that point and the employee is laid off due to a lack of work . . . .

   In Lewis v. CUIAB a 1976 appellate court case, the court stated, "A Bona fide Leave of absence must contain an assurance by the employer that upon termination of the period of absence the employee will be returned to the same or like work."

   It should be noted that the above citations do not require that either the claimant or the employer specify a definite date of return to work before the leave may be considered "true" or "formal." The claimant may be on an open-ended leave which requires that the claimant return to work within a specified time but which does not have a definite ending date, such as a pregnancy leave.

   It should also be noted that any separation under consideration must be from the most recent employer, whether or not the claimant is, or has been, on leave from another employer at the time the claim is filed.

   Calif. Unemp. Ins. Code 1256.3, provides:

   . . ."[M]ost recent work" is that work in which a claimant last performed compensated services:

   (a) Prior to and nearest the date of filing a valid new, reopened, or additional claim for unemployment compensation benefits . . . .

   In P-B-268, the claimant took a medical leave of absence from Lockheed effective in September. Her physician extended her leave to March 1, and then again for an indefinite length of time. Before the claimant was able to obtain a doctor's statement as to the amended probable date of release, her employment was terminated.

   The claimant worked for a janitorial service two hours a night between the commencement of her leave from Lockheed and a date in October or February, (exact date in dispute). In its decision setting aside the Department's determination and ruling, the Board stated:

   The claimant was unemployed as far as this appellant (Lockheed) was concerned during the term of the authorized leave of absence but performed "work" for the janitorial service company after the leave had been granted by the appellant. Therefore, the most recent "work" of the claimant, within the meaning of Section 1256 of the code, was that performed for the janitorial service company.

2. The "Informal" Leave of Absence

   Title 22, Section 1256-16(b), provides:

   A true leave of absence does not exist if an employee merely leaves for a fixed period of time with an understanding that he or she will be rehired at the end of that period only if work is available. In such a case if no work is available when the period expires the employment has been terminated when the employee first left and the employee has voluntarily left work at the commencement of the period.

   Since an informal leave does not preserve the employment relationship, the interviewer must determine the reason(s) the leave of absence was requested. If the claimant requested the leave for reasons which do not constitute good cause, the separation will be disqualifying even if the employer understood and approved of the reason for leaving.

   In Douglas v. CUIAB a 1976 appellate court case, the claimant requested a leave of absence to accompany her husband to Washington, where he was assigned for three months. She received no response to her proposal and requested a meeting with the hospital administrator, but the meeting was not arranged before she left work. Instead, she was given a copy of a note from the hospital administrator to the personnel department stating that the administrator did not wish to risk part-time leadership during her absence. The note also instructed personnel to hire a replacement, and if the replacement did not work out and the claimant was available on her return from Washington, the position would be available to her. Mrs. Douglas testified that, if the administrator had refused to grant her request for a leave, she would not have gone to Washington with her family. In its decision, the court found:

   Although Douglas was not granted a conference with her administrator or given the opportunity to withdraw her request for a leave of absence, the evidence establishes that her leave of absence was granted subject to the condition that she would be reinstated only if her replacement was not satisfactory.

   An employee who requests a leave of absence (a) without securing an unconditional guarantee that she may return to her employment at the expiration of the leave of absence, (b) knowing that her services are necessary to the smooth and efficient operation of her employer's business, and (c) while continued work is available for her to do voluntarily quits her employment within the meaning of Section 1256;

   A preponderance of the evidence shows that while work was available and her employer needed her services, Douglas took her leave of absence and without securing an unconditional guarantee that she could return at the expiration of her leave. A preponderance of the evidence further shows that she took her leave for reasons of personal pleasure, namely, to accompany her husband to an out-of-state destination, while her spouse was located on a temporary job assignment, even though her presence was not required;

   Accordingly, Douglas voluntarily terminated her employment and consequently left her work without good cause, and under Section 1256 is disqualified from receiving . . . benefits.

   A similar situation occurred In P-B-145. The claimant requested a leave to accompany her husband to Europe, where he had been transferred for a year. The employer informed the claimant that a year's leave was not possible, but that she could request a six-month leave with possibilities for renewal for another six months. The leave allowed the claimant to retain her profit-sharing in the company and to continue her insurance. The leave did not guarantee the claimant reemployment, and the employer specifically told the claimant that she would be rehired at the end of the leave only if a job opening existed at that time.

   The claimant's husband lost his job, and he and the claimant returned to California. She contacted the employer ten days before the expiration of her six-month leave, and was told that there were no job openings. As a result, her leave would be extended on a month-to-month basis. In its decision, the Board held:

   A bona fide leave of absence must contain an assurance by the employer that upon termination of the period of absence the employee will be returned to the same or like work. Here the employer told the claimant before she left that she would be reemployed only if there was an opening for her. In other words, there was no guarantee of return to work. The so-called leave of absence was only a promise of preferential rehire . . . . Because the claimant did not enter upon such a bona fide leave of absence, we must conclude that she voluntarily left her work at the time she went to Europe.

B. Analyzing the Cause of the Claimant’s Unemployment

The claimant's eligibility is dependent upon the reason for leaving the last employment as of the time of filing a claim for benefits. There can be only one last employer and only one leaving from that employment.

In P-B-472, the claimant gave notice during the third week of May that he intended to leave his job effective June 29. On May 29 the employer informed the claimant his services were no longer required. Citing P-B-259, the ALJ held two separation determinations were required; one at the point of discharge, and the other at the claimant's projected quit date. While the merits of the case are not applicable to this section, the Board's opinion regarding the multiple separation concept is. In its decision overruling that portion of P-B-259, the Board stated:

We believe that Sections 1256 and 1256.3 of the Code make clear the framework within which an individual may or may not be disqualified when quitting or being discharged. Section 1256 provides that a person is or is not disqualified based upon the circumstances of his leaving his most "recent work." "Most recent work" is defined in Section 1256.3 as the work last performed "prior to and nearest" the date of the filing of a claim. There is nothing in these code sections that would suggest that two determinations regarding the same claim filing might be warranted . . . . A fair reading of court cases, precedent decisions, and Sections 1256 and 1256.3 indicates to us that a single determination should be made in these cases by (1) ascertaining the filing date and, (2) analyzing the cause of the claimant's unemployment as of the time the claimant files his or her claim.

In the court cases and precedent decisions cited above, a common thread has been that a determination of disqualification should be related to the cause of a claimant's present unemployment, the reason he is filing his claim. This is the rationale expressed by the legislature with regard to the enactment of Section 1256.3 of the Code.

Thus, we look at the reason the claimant is unemployed at the time he or she files the claim for benefits:

• If the claimant files a claim while on a "true" leave of absence, eligibility is based on the reason for the leave.
• If the claimant on a "true" leave of absence, quits the employment and then files a claim, eligibility is based on the reason the claimant quit the job. If the claimant is discharged while on a "true" leave of absence and then files a claim, eligibility is based on the reason for the discharge.
• If the claimant quits rather than return to work at the end of a "true" leave of absence and then files a claim, eligibility is based on the reason for the quit.
• If the employer has no work for the claimant at the end of a "true" leave of absence, there is no separation issue. The reason for leaving is a lay-off.

Any situation that might occur after the filing of the claim, such as a failure to return to employment at the end of the leave, may raise a question of eligibility under other sections of the Code, but will not raise another issue under Section 1256.

C. Failure to Request, Accept, or Extend a Leave

Title 22, Section 1256-16(c), provides:

If an employee has good cause for leaving but either fails to request a leave of absence or refuses to take one which is available or offered, the good cause may be nullified.

An employee who may have good cause to leave work temporarily but who refuses a true leave of absence offered by his or her employer has voluntarily left work without good cause.

Title 22, Section 1256-16(d), provides:

Good cause for leaving work is nullified if the employee fails to request a leave of absence and the following conditions exist:

1. The Claimant's Responsibilities

   Title 22, Section 1256-3(c), Duty to Preserve the Employment Relationship, provides:

   Prior to leaving work, the claimant has a duty to attempt to preserve the employment relationship. Failure to do so negates what would otherwise constitute good cause. This duty may be satisfied by reasonable steps, including:

   . . . (2) Seeking a leave of absence . . . if the claimant knew or should have known that a leave . . . would have been granted had one been requested.

   Following are examples of situations in which the claimant failed to request a leave of absence:

   Example 1. Claimant Aware of Employer's Leave of Absence Policy

   In P-B-247, the claimant obtained a six months' maternity leave of absence effective in October. At the end of that leave, she requested and was granted an additional three months leave, as she lacked child care. In July she was granted an additional three months for the same reason. She returned to work in October and worked until the latter part of November, when she resigned because she was having difficulty in finding adequate child care, and the child was ill. She contended that she did not request a leave of absence because she believed that leaves were granted only for personal illnesses of the employee. The employer contended that, had a leave been requested, it would have been granted. In its decision denying benefits, the Board stated:

   We do not believe that the claimant has offered a satisfactory explanation for her failure to request a leave (in November), for she was fully aware that the employer granted leaves of absence for reasons other than personal illness of the employee, since she had been granted two extensions of her original leave based upon her lack of care for her child. Under the facts of this case we do not believe there was any obligation upon the employer to extend the opportunity to the claimant to take further advantage of the leave provisions. In our opinion the claimant did not make a reasonable effort to preserve the employer-employee relationship, and, therefore, her leaving of work must be deemed to be without good cause.

   Example 2. Extension of Leave of Absence Was Available

   In P-B-258, the claimant left her work on a pregnancy leave of absence. She then failed to return to work and failed to advise her employer that she would be unable to return to work at that time. According to the employer, had she requested an extension, one probably would have been granted. At the hearing, the claimant testified that she could not return at the designated date because she was nursing her baby. The claimant also admitted that when she left, she did not intend to return to work for the employer because she was dissatisfied with the company's general policies and the rote character of the work. She took the leave of absence only to protect her rights under a group hospitalization plan. In its decision denying benefits, the Board stated:

   In the instant case, we are not convinced that the claimant had good cause for her failure to return to work for the appellant-employer. . . . Although the claimant personally disliked the work and the plant policies, there is no evidence that the work was unsatisfactory and it does not appear that the claimant reasons would be good cause for leaving such employment. Considering all the facts, we conclude that . . . the claimant, by her failure to contact the employer in an attempt to obtain an extension of her leave of absence until she was able to return to work, voluntarily left her work without good cause . . . .

   Example 3. Leave of Absence Probably Would Not Have Been Granted

   In P-B-256, the claimant lived with her two small children and her mother. The claimant's mother took care of the children while the claimant worked. The claimant's mother was diagnosed as having a terminal illness. The mother's doctor recommended she discontinue caring for the claimant's children. The claimant discussed the matter with her foreman, but a leave of absence was not discussed. The claimant was aware, however, that the company had a leave policy, customarily granted leaves, and that such leaves could be extended upon written application. The claimant did not inquire into the possibility of a leave of absence because she assumed she could obtain no more than a thirty-day leave of absence due to the length of her employment and she did not feel that would be sufficient.

   The employer's representative doubted that the supervisor would have granted a leave for an indefinite length of time, but also pointed out that the company was not restricted exclusively to thirty-day leaves. The employer suggested that thirty days should be sufficient to find other care. The claimant argued that the leave would necessarily be indefinite in nature since she wanted to care for her mother, who was confined to bed, as well as the children. It would have been difficult, if not impossible, to secure adequate care for all three. If she had been able to find someone to care for her family, the cost would have been prohibitive. In finding the claimant eligible for benefits, the Board stated:

   The claimant in the instant case clearly left her most recent work voluntarily and the sole question is whether or not she had good cause for the leaving. We have repeatedly held that the necessity for caring for one's children constitutes good cause for voluntarily leaving work. We have also held that a claimant otherwise having good cause for leaving his work who is offered and refuses a leave of absence or knows of but fails to avail himself of a leave of absence does not have good cause for leaving . . . . The claimant informed her supervisor fully of the circumstances and the supervisor concurred with the claimant that termination was indicated without offering a leave of absence. Considering all the circumstances presented in this case, we conclude that the claimant acted reasonably. . . and had good cause for leaving her work.

   Example 4. Request to Extend Leave is a Futile Gesture:

   In P-B-253, the claimant's chronic ill health caused irregular attendance at work. She was off from January to March; she was entitled, under the union contract, to up to two years' sick leave while being carried on the employer's payroll as "absent-sick." On March 16 the claimant contacted her supervisor, discussed her health problems, and indicated she intended to resign. The supervisor agreed that the resignation "might be the best thing to do." The claimant did not ask to continue her leave, and the employer did not offer. In holding the claimant eligible despite her failure to subscribe to the full two years' sick leave, the Board stated:

   . . . [I]t is established that a worker in the employ of the [employer] may take a leave of absence for health reasons up to two years but in our opinion the claimant herein had done everything that should reasonably be expected of her to preserve her position at the time of her resignation . . . . After two months of leave she continued to be in poor health, and when she resigned the claimant could not anticipate when if ever, she would again be able to resume her duties. In the face of this situation the employer did not offer to continue the claimant's leave . . . but after a discussion of her health problem agreed with the claimant's decision to quit at that time . . . . [T]he evidence before us justifies a conclusion that the conversation . . . resulted in a mutual agreement between the claimant and her employer that under the circumstances no useful purpose would be served by the indefinite extension of her then existing leave of absence. Under these facts, we hold that the claimant's abandonment of the employer-employee relationship . . . was with good cause . . . .

   Failure to request a leave of absence is only material if the claimant knew a leave of absence was available, the leave would have been granted, and the leave would have preserved the employment relationship.

2. The Employer's Responsibilities

   When the employer has an established leave of absence policy but fails to inform its employees of the policy, or fails to offer a leave when advised of the employee's compelling need for time off, good cause may be found for the claimant's leaving. However, the employer's failure to offer a leave of absence, in and of itself, will not constitute good cause for the claimant's leaving. The claimant's reason for requesting the leave must be of a compelling nature.

   In P-B-246, the claimant had worked a split shift as a telephone operator for three months at the time of her leaving. Her husband became ill with measles, and the nursery school which cared for her 13-month-old child on a 24-hour basis would not take the child because of its exposure to the measles. The claimant requested night work so that she could continue working, but had insufficient seniority to do so. She explained the emergency to the employer, who did not offer her a leave of absence. The claimant did not request a leave of absence because she was not aware a leave of absence was available. The claimant had been hospitalized during the portion of the orientation training which covered the company's leave of absence policy. In its decision, the Board stated:

   The evidence in this case shows that at the time of leaving, the claimant informed the employer of the nature of the emergency requiring her to leave. She also asked to be assigned to night work so she could continue working . . . . Although the employer had a leave of absence policy in effect the evidence shows that the employer did not inform the claimant thereof prior to her leaving nor did the employer offer to grant one to the claimant despite her efforts and willingness to continue working. Under the circumstances herein the claimant did everything that could reasonably be expected of her to preserve her position prior to leaving it and the employer did nothing to aid her in such effort. We hold therefore that her leaving of work . . . was with good cause.

D. Mandatory Leave of Absence

When a claimant is placed on a mandatory leave of absence by the employer, the claimant is involuntarily unemployed as no further work is available to him or her.

Title 22, Section 1256-16(b), provides in part:

In Douglas Aircraft v. CUIAB, a 1960 appellate court case, the employer had a mandatory policy for pregnancy, specifying that a pregnant employee "shall not be permitted to remain at work . . . beyond the end of the fourth month of pregnancy." It also provided that the employee could apply for a formal leave of absence if she had been employed by the company at least one year. The claimant worked the maximum four months and applied for, and was granted, a leave of absence. At that time she was not disabled and her doctor would have allowed her to work an additional two months. The claimant filed a claim for benefits. The court determined that the employer-employee relationship was still in existence as of the date the claim was filed, since that relationship had not been terminated. Additionally, the court did not agree with the employer's contention that the claimant left voluntarily as she was a party to the union contract. The court found it illogical to hold that the employee is disqualified for benefits merely because the provisions requiring her to take a pregnancy leave were part of a collective bargaining agreement.

Having determined that the claimant's separation was therefore involuntary, rather than voluntary, the court stated:

Footnote 2 contains the resolution of the decision for our purposes:

The Board also commented, "it is entirely immaterial, however, whether her leaving was the result of company policy or a collective bargaining agreement."