32. Was There a Pregnancy/Parental or Illness Issue?

Pregnancy and Parental Leave 

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. Dir. of the Div. of Emp't Sec. v. Fitzgerald, 382 Mass. 159, 414 N.E.2d 608 (1988). In Fitzgerald, the claimant, who prevailed in obtaining UI benefits, was a welder whose obstetrician advised her 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. Dir. of the Div. of Emp't 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 AH c. 7 § 1.C.5, claimants' statements that they 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 federal or state law governing leave due to pregnancy or the employer’s policy) in order to remain eligible for UI. In BR-108494-CTRM (5/8/09), the Board 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 parental leave, she did generally inquire about a leave for pregnancy, and the director did not offer her parental 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 parental leave and whom the employer does not reinstate at the end of the leave is eligible for UI benefits; the employer‑employee relationship is deemed to continue during the leave. W. Electric Co. v. Dir. of the Div. of Emp't Sec., 340 Mass. 190, 163 N.E.2d 154 (1960). However, arguably, if the claimant can show that the termination occurred when the leave began, that date would be the start of the claimant's benefit year and eligibility for UI would start as soon as the claimant was available for work. An extended unpaid leave may affect the claimants' benefit credit, and thus their monetary eligibility and benefit rate. G.L. c. 151A, § 24(a).

The Board held a claimant’s separation to be involuntary when her employer required her to decide, months before giving birth, that she would need to quit because she believed that she would not be able to afford childcare after giving birth. Though circumstances changed following her prospective notice of resignation such that affording childcare became feasible, these circumstances were neither planned nor were they reasonably foreseeable when she was forced to make the decision. BR - 0002 1442 38 (12/30/13) (Key).

Pregnancy Discrimination, the Massachusetts Parental Leave Act, the Massachusetts Pregnant Workers Fairness Act, and the Paid Family and Medical Leave Law.

Under the Massachusetts Parental Leave Act, G.L. c. 149 §105(d), employees who have completed their probationary period or who have worked full-time for the employer for three months is entitled to eight weeks of parental leave for the purpose of the birth or adoption of a child. This leave is generally unpaid although the employer may elect to pay the employee during the leave. It also applies regardless of the gender identity of the employee.

EEOC guidelines do not allow for disparate treatment of pregnant employees and the leave policy must be uniformly applied. See EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues, June 25, 2015, available at https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm. Employers are also not allowed to terminate an employee for requesting restricted or light duties if the reason is due to pregnancy and this denial does not match similar situations in cases of injury or disability. See Young v. UPS, 135 S. Ct. 1338 (2015) (holding that evidence of an employer policy or practice of providing light duty to a large percentage of non-pregnant employees while failing to provide light duty to a large percentage of pregnant workers, although not facially discriminatory, might establish that the policy or practice significantly burdens pregnant employees). Similarly, employers may not adopt policies that limit or preclude pregnant employees from performing specific jobs or tasks. See International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991); See also Spees v. James Marine, Inc., 617 F.3d 380, 392-94 (6th Cir. 2010) (finding genuine issue of material fact as to whether employer unlawfully transferred pregnant welder to tool room because of perceived risks of welding while pregnant).

Under the Massachusetts Pregnant Workers Fairness Act, St. 2017, c. 54, amending G.L. c. 151, § 4, employers may not deny reasonable accommodation for an employee's pregnancy or any condition relating to pregnancy including lactation or the need to express milk for a nursing child. Unlawful activities under this act include taking adverse employment actions including the denial of employment opportunities and requiring an employee to take a leave if another reasonable accommodation can be provided.

Under An Act Relative to Minimum Wage, Paid Family Medical Leave and the Sales Tax Holiday, St. 2018, c. 121, adding G.L. c. 175M  all family and medical leaves are job protected and employees are protected against retaliation starting January 1, 2021 for family leave for the birth or adoption or foster care placement of a child, for needs arising out of a covered individual’s family member’s active duty service, and for care of a family member of a covered service member.  Benefits and protections for other covered individuals for care of a family member with a serious illness begin on July 1, 2021.

Illness or Injury of the Employee, Employee’s Spouse, or Family Member

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, compelling and necessitous” circumstances under § 25(e)(1) of the law and the claimant should not be disqualified. For example, in Carney Hosp. v. Dir. of the Div. of Emp't 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 her elevated blood pressure and recurrent headaches, which she had referred to in her letter of resignation. Hunt v. Dir. of the Div. of Emp't Sec., 397 Mass. 46, 489 N.E.2d 696 (1986). A claimant need not prove that the employment caused the ailment; they need only prove that it was reasonable to believe that a causal connection existed between the employment and the ailment. See Carney Hospital, 382 Mass. at 691.

For example, the Board of Review has held that where a claimant 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) (Key). The Board held that a claimant’s leaving was involuntary where the claimant was experiencing respiratory issues while at work. Her belief that the presence of mold in the workplace was causing these issues was reasonable because the employer’s attempts to repair the leaking roof only marginally improved her issues and because she only felt complete relief when she left work. She took steps to preserve her employment when she complained to the employer about her health concerns and the employer refused to acknowledge them. BR - 0002 3797 42 (5/6/14).

Note: 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. Adjudicators and review examiners may be skeptical of such cases, but a claimant will have a decent chance of proving the leaving was involuntary if the claimant 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. For example, the Board found that a combination of a claimant’s medical condition of stress and anxiety, recent discipline for poor work performance and an inability to transfer to get more help with her job duties created urgent, compelling and necessitous circumstances for resigning.  The Board noted that the claimant’s two-week notice to provide the employer an opportunity to find a replacement and to leave on good terms did not make the claimant’s reasons for leaving any less urgent.  BR-0017 4854 67 (11/22/16) (Key).

As with any other claim that leaving was involuntary, an employee who leaves because the job is a threat to the employee's health will be required to show that reasonable steps were taken 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 or a medical condition can also constitute “urgent, compelling and necessitous 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 AH c. 7, § 4B.3; BR-114436-A (10/12/10) (claimant’s need for medical treatment in Morocco preventing his timely return was for urgent, compelling reasons).

The Board held that a claimant’s decision to retire was involuntary when his employer gave him the option between forced retirement and voluntary retirement because his severe medical condition (loss of hearing) made it dangerous for him to continue working. BR - 0011 5387 80 (6/12/14).

Where the illness is temporary, in addition to requesting a leave 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.

A claimant’s need to leave employment to temporarily move to Nevada to care for her mother when her employer denied her requests for leave of absence or part-time work made her separation involuntary. The Board found no distinction between an employee caring for an ailing parent and an employee caring for an ailing child. BR - 0002 4255 53 (5/23/14).

In any case where claimants leave work because of a health condition, they will probably be questioned about whether they are able and available to accept future work, pursuant to G.L. c. 151A, § 24(b).

Although a claimant is subject to disqualification under G.L. c. 151A, 25(e)(1) for leaving work to accompany or join a spouse or other person to a new location, exceptions to this rule occur when the move is necessary to protect the health of the spouse or other person. AH c. 7, § 4B.5.

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