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30. Did the Claimant Try Requesting a Leave of Absence First?

ALERT:   IN LIGHT OF THE COVID-19 EMERGENCY, ASPECTS OF THE UI PROCESS HAVE BEEN MODIFIED.  VISIT https://www.masslegalservices.org/covid-19-and-ui FOR CURRENT INFORMATION.

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.

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 of Review 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).

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 Department of Employment & Training, 412 Mass. 845, 593 N.E.2d 1297 (1991); Guarino v. Director of the Div. of Employment Security, 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. Commissioner of the Dep’t of Employment & 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 Director of the Div. of Employment & Training, 54 Mass. App. Ct. 405, 765 N.E.2d 810 (2002).