Pregnancy and Maternity

Pregnancy or childbirth can be a compelling personal reason, but the claimant's decision to leave her employment must be reasonable, and she must exhaust all reasonable means to preserve her employment. Director of the Div. of Employment Sec. v. Fitzgerald, 382 Mass. 159, 414 N.E.2d 608 (1988). In Fitzgerald, the claimant, who prevailed in obtaining unemployment benefits, was a welder who was advised by her obstetrician in mid-pregnancy to discontinue her employment. She sought a transfer to clerical work, but the company physician did not support her request for transfer. After obtaining outside opinions, she declined to continue welding and was put on maternity leave. While on maternity leave she continued to seek clerical work and was considered involuntarily "unemployed" despite her ongoing relationship with the employer.

In Dohoney v. Director of the Div. of Employment Sec., 377 Mass. 333, 386 N.E.2d 10 (1979), the claimant was disqualified after she left without applying for maternity leave or discussing with anyone her plans to return after childbirth.

According to SRH § 1212(B), a claimant’s statement that she did not know that a leave was available or that attempts to request a leave would be futile is a valid reason for not requesting a leave of absence. And, despite the decision in Dohoney, it is not absolutely necessary for a claimant leaving employment due to pregnancy to specifically apply for maternity leave (under the FMLA, the MMLA, or the employer’s policy) to remain eligible for UI. In BR-108494-CTRM (5/8/2009), the Board of Review found the claimant took sufficient steps to preserve her employment before leaving her position due to her pregnancy. Although the claimant did not apply for FMLA or MMLA maternity leave, she did generally inquire about a leave for pregnancy, and the director did not offer her maternity leave or any other options for maintaining her employment; thus, the Board concluded it was reasonable for the claimant to believe that further efforts to preserve her employment would have been futile.

An employee who has properly applied for maternity leave and is not reinstated at the end of the leave is eligible for benefits; the employer‑employee relationship is deemed to continue during the leave. Western Electric Co. v. Director of the Div. of Employment Sec., 340 Mass. 190, 163 N.E.2d 154 (1960). This principle applies to any type of leave. An extended unpaid leave, however, may affect the claimant's benefit credit, and thus his or her monetary eligibility and benefit rate. G.L. c. 151A, § 24(a).

Illness or Injury of the Employee

The health condition of an employee can constitute a compelling reason for leaving. Where an employee leaves work out of necessity due to a health problem, such a leaving constitutes "urgent, necessitous, and compelling" circumstances under § 25(e)(1) of the law and the claimant should not be disqualified. For example, in Carney Hospital v. Director of the Div. of Employment Sec., 382 Mass. 691, 414 N.E.2d 1007 (1981) the court found that the claimant was not disqualified where the claimant had a reasonable belief that a recurrent severe skin infection was caused by the work environment. In another case, a remand was required to enable the claimant (who was without representation at her initial hearing) to procure medical evidence of elevated blood pressure and recurrent headaches that she had referred to in her letter of resignation. Hunt v. Director of the Div. of Employment Sec., 397 Mass. 46, 489 N.E.2d 696 (1986). A claimant need not prove that the employment caused the ailment, only that it was reasonable to believe that a causal connection between the employment and the ailment existed. SRH § 1216(E). 

According to SRH § 1216(C), where a “claimant leaves work because of an illness or accident, but does not request a leave of absence, nor does he or she notify the employer of his or her inability to work . . . if the claimant can show good cause for not requesting a leave of absence or indicates that such a request would have been futile, for example, because the employer had a clear policy denying leaves of absence, then the leaving is for good cause attributable to the employer and the claimant is not subject to disqualification pursuant to § 25(e)(1).”

For example, the Board of Review has recently held that where a claimant who injured her arm at home and was unable to return to her job as a bartender because she was unable to afford the surgery necessary for her recovery but was capable of doing other forms of work, her leaving was involuntary. BR-112431-EB-OP (2/23/11).

Job-related emotional stress is a particularly common reason for claimants to leave work, but frequently they will not reveal that they suffer from symptoms of stress or anxiety until directly asked. Job-related stress can be caused by a number of factors, including difficulty meeting the employer's production demands, frequent dealings with hostile customers, repeated harsh criticism by the employee's supervisor, etc. Service representatives and review examiners may be skeptical of such cases, but a claimant will have a decent chance of proving the leaving was involuntary if he or she has sought professional counseling or medical attention, has been prescribed medication for emotional problems caused by the stress and/or can testify, and have friends or relatives testify, as to physical symptoms, such as trembling, panic attacks, difficulty sleeping, and appetite and weight changes.

As with any other claim that leaving was involuntary, an employee who leaves because the job is threatening his or her health will be required to show that he or she took reasonable steps to preserve the employment by, for example, bringing the problem to the employer's attention so the employer has an opportunity to correct it, or requesting a leave of absence (if a leave would not be futile, i.e., if there is some reason to think that, at the conclusion of the leave, the job would be less harmful or the employee more able to tolerate the job). See Question 30.

Leaving work due to illness can also constitute "urgent, necessitous, and compelling circumstances" even if the illness is not caused by the job, where the illness permanently disables the employee from performing the job (but not other kinds of work) or when the illness is temporary and the employer refuses to grant a leave of absence. See SRH § 1216(B) and (C); BR-114436-A (10/26/10) (claimant’s need for medical treatment in Morocco preventing his timely return was for urgent, compelling reasons).

In addition to requesting a leave where the illness is temporary, DUA will expect the claimant to have brought the problem to the employer's attention and to have given the employer a chance to offer a transfer to another position or to modify the job so that it is within the employee's capabilities.

In any case where a claimant leaves work because of a health condition, he or she will probably be questioned about whether she or he is able and available to accept future work, pursuant to G.L. c. 151A, § 24(b). 

Note:  Advocates should ensure that DUA does not erroneously interpret § 24(b) to disqualify claimants available only for part‑time work. See Question 8.