30. Did the Claimant Try Requesting a Leave of Absence First?
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)
While a claimant's failure to request a leave of absence is frequently a reason for disqualification by adjudicators and review examiners, 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). (1984). The Board of Review has similarly recognized that claimants are not required to request a leave of absence of job transfer to make reasonable job preservation efforts. BR-0069 5698 65 (6/27/22) (While the employer testified the claimant may have been eligible for a leave of absence of 1-2 months, claimants are not required to request a leave of absence to show they made reasonable job preservation efforts).
Claimants may also demonstrate requesting a leave would be futile, that they did not know a leave might be available, or that 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 , could not afford to take an unpaid leave of absence, or where their employer failed to mention the availability of a leave. BR- 0032 9811 51 (6/5/20); see also BR-0073 9919 90 (11/21/22) (Claimant made adequate job preservation efforts in part by discussing leave of absence options with her employer, but did not qualify for a leave as a part-time employee); BR- 0069 5698 65 (6/27/22) (Claimant not required to take leave to make adequate job preservation efforts, and here claimant was not aware a leave was an option because the employer did not mention the possibility when discussing the claimant’s childcare situation). Advocates should also note that both the FMLA and Massachusetts Paid Family and Medical Leave Act impose specific requirements on employers to inform employees of the availability of leaves of absences. See. 29 CFR § 825.300 (FMLA); G.L. c. 175M, § 4(a) (PFML). 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 (1/10/14). 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 (6/25/14).
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 (1/15/14).
Domestic Violence and Sexual, Racial and Other 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, racial, or other forms of unreasonable 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); 430 CMR 4.04(5); BR-0052 8999 53 (10/28/22) (Claimant does not need to make job preservation efforts in cases of sexual harassment).