To establish that the claimant left work for “urgent, compelling and necessitous circumstances,” the employee must have first made reasonable attempts to find a way to maintain the employment relationship (see Question 27), generally by requesting a leave of absence. This requirement will be excused if the employees can establish that:
- they reasonably believed leaves of absence were not available or that their request for a leave of absence would have been denied; or
- a leave of absence would not have resolved the underlying problem.
Review examiners treat this requirement very seriously and do not lightly excuse a failure to request a leave. It should be noted that this leave of absence requirement is not statutory. Indeed, the SJC has “reject[ed] the notion that in order to be eligible for benefits an employee must request a transfer to other work or a leave of absence.” Guarino v. Dir. of Division of Emp't Sec., 393 Mass. 89, 94 (1984).
Claimants are not required to request a leave if they did not know a leave might be available, or if the employer would not grant a leave. See AH c. 7, § 1C.5. The Board held that while a claimant may have inaccurately concluded that she had already exhausted her available leave, this belief was reasonable given her severe mental and physical conditions at the time. BR - 0014 5696 18 (7/16/15). The Board of Review held that a claimant acted reasonably when she did not request leave to deal with childcare issues because management inaccurately told her that her leave under a collective bargaining agreement had been exhausted. BR-0014 3119 43 (12/9/15). A claimant may not be disqualified for failure to take a leave where they would not qualify for a leave of absence or could not afford to take an unpaid leave of absence. BR-0032 9811 51 (6/5/20). Nor should claimants be disqualified if the leave options available to them would be inadequate to address the reasons needed for the leave. BR-0010 9677 48 (5/15/14) (“because claimant’s relocation to care for her father was “open-ended and there was no indication that her father’s condition would improve within a reasonable timeframe, it would have been futile for the claimant to have requested a leave of absence.”); BR-0032 0714 77 (3/11/20) (it was “not unreasonable for the claimant to determine that a leave of absence without pay that could extend from six months to one year would not be a feasible option for her.”); BR-115452-OP (4/4/12) (employer had no leave policy, and in any case “a leave of absence would not have solved the claimant’s childcare issues.”).
The Board held that claimant’s need to stop working to allow a doctor to adjust depression medication (after being denied FMLA leave due to ineligibility and without employer’s providing an option for non-FMLA leave) was involuntary as a matter of law, citing Reep v. Comm’r of Dep't of Emp't & Training, 412 Mass. 845, 593 N.E.2d 1297 (1991); Guarino v. Dir. of the Div. of Emp't Sec., 393 Mass. 89, 469 N.E.2d 802 (1984). BR - 0002 1459 34 (1/10/2014). The Board of Review held that a claimant who informed her employer that her work was physically overwhelming and who had a mental breakdown because of her inability to adequately perform the work, separated involuntarily under G.L. c. 151A, § 25(e). BR - 0016 3569 76 (10/19/15).
The Board also held that a claimant’s decision not to request further unpaid leave after his FMLA leave expired was reasonable on the basis of futility (if granted—which was unlikely—he still would not have recovered sufficiently to do the work he had been doing prior to injury and the employer would not have any light-duty positions available), which rendered his separation involuntary as a matter of law. BR - 0002 2340 17 (6/25/2014).
When an employee returns from an approved leave of absence only to be notified by their employer that they have already been replaced, the reason for separation from employment for UI purposes is “discharge.” See BR - 0002 1899 64 (1/15/2014).
Note: Ensure that the claimant would actually have been eligible for a leave under the applicable federal or state law and that the employer followed the requisite posting and notification requirements. Claimants who are on a leave of absence granted at their request will be considered “not in unemployment” and therefore ineligible for UI benefits during the period of their leave.
In Lebeau v. Comm'r of the Dep’t of Emp't & Training, 422 Mass. 533, 664 N.E.2d 21 (1996), the claimant requested a leave of absence and then sought to rescind the leave, and the employer exercised its discretion (under a contract) not to rescind. The court held that the claimant was not involuntarily unemployed during the period of the leave and therefore was not entitled to benefits.
Domestic Violence and Sexual Harassment Exceptions
The requirement that a claimant take reasonable steps to resolve problems with the employer prior to leaving does not apply when the claimant leaves work due to domestic violence, G.L. c. 151A, § 25(e), or where there are allegations of work-related sexual harassment. See Tri-County Youth Programs, Inc. v. Acting Deputy Dir. of the Div. of Emp't & Training, 54 Mass. App. Ct. 405, 765 N.E.2d 810 (2002).