California Code of Regulations › Title 22 - Social Security › Division 1 - Employment Development Department › Subdivision 1 - Director of Employment Development › Division 1 - Unemployment and Disability Compensation › Part 1 - Unemployment Compensation › Chapter 5 - UNEMPLOYMENT COMPENSATION BENEFITS › Article 1 - ELIGIBILITY AND DISQUALIFICATIONS › Section 1256-16 - Voluntary Leaving -Good Cause -Leave of Absence

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
(a) Scope. This section deals with the effect
						  that a leave of absence has under Section
						  1256 of the code. Sections
						  1256-1,
						  1256-2, and
						  1256-3 of these regulations set
						  forth general principles also applicable under this section. Whether an
						  individual is disqualified for benefits because he or she has voluntarily left
						  his or her most recent work to take time off from work depends upon whether the
						  purpose of the absence was for good cause. Sections
						  1256-4 through
						  1256-23 of these regulations
						  discuss what circumstances are good cause.
(b) Leave of Absence--Existence and Effect. A
						  true leave of absence does not exist if an employee merely leaves for a fixed
						  period of time with an understanding that he or she will be rehired at the end
						  of that period only if work is available. In such a case if no work is
						  available when the period expires the employment has been terminated when the
						  employee first left and the employee has voluntarily left work at the
						  commencement of the period.
A true leave of absence exists if the employer and
							 the employee mutually agree that the employee will return to his or her work
							 after a period of absence and that the employment relationship is not
							 terminated although the performance of services is suspended for the period of
							 the absence from work. A leaving of work occurs at the commencement of a true
							 leave of absence. If the true leave of absence is not mandatory but is
							 requested by the employee, or if the employee refuses a mandatory leave and
							 files a claim after the reason for the mandatory leave has ended, then the
							 employee has left work voluntarily. Whether the employee has left for good
							 cause is determined by the purpose or reason for which the employee takes or
							 refuses the true leave of absence. If an employee has good cause for leaving
							 but either fails to request a leave of absence or refuses to take one which is
							 available or offered, the good cause may be nullified. Although a true leave of
							 absence preserves the employment relationship, there is a termination of the
							 employment relationship if the claimant during the leave demonstrates an intent
							 not to return to work by resigning, securing another job, or registering for
							 work.
If during or at the expiration of a true leave of
							 absence the employer replaces, lays off, or discharges an employee, or if the
							 employer fails to return the employee to his or her work at the expiration of
							 the leave and thus lays off the employee, there is a layoff or discharge at the
							 time of such action.
If a true leave of absence is mandatory due to an
							 employer policy or pursuant to a collective bargaining agreement and the
							 employee resigns or files a claim before the reason for the mandatory leave has
							 ended, the employer is the moving party and the employee has left his or her
							 work involuntarily and is not subject to disqualification under Section
							 1256 of the code.
(c) Employee's Refusal of Leave. An employee
						  who may have good cause to leave work temporarily but who refuses a true leave
						  of absence offered by his or her employer has voluntarily left work without
						  good cause.
EXAMPLE 1. The employer required that A leave work
							 because of her pregnancy. The employer offered A a leave of absence which, if
							 accepted, would have extended for three months after the birth of the child. A
							 refused the leave because she felt she would be too busy after the birth of the
							 child. Subsequent to the birth of the child, A filed a claim for
							 benefits.
When A refused the leave of absence she voluntarily
							 left her work for reasons that were not good cause.
(d) Employee's Failure to Request Leave. Good
						  cause for leaving work is nullified if the employee fails to request a leave of
						  absence and the following conditions exist:
(1) The employer has an established leave of
						  absence policy which the employee knew or should have known.
(2) The employer would probably have granted
						  the leave.
(3) An effort by the
						  employee to maintain the employment relationship would have been reasonable
						  under the circumstances.
(4) The
						  leave of absence would have preserved the employment relationship.
EXAMPLE 2. B was required to have surgery. B's
							 employer had no provision for any leave of absence. B quit without asking for a
							 leave, underwent surgery and, upon recovery, filed a claim for benefits.
Since B had good cause for leaving, the employer had
							 no leave policy, and it was clear that a request for a leave would have been
							 futile, B's failure to request a leave did not nullify B's good cause due to
							 health problems for leaving work.
EXAMPLE 3. C had child care problems which required C
							 to leave work temporarily. Although C was aware of the employer's leave policy,
							 C did not request a leave because C did not believe it would be granted, and
							 C's employer had indicated a leave would probably have not been granted.
Since it was improbable that C would have been
							 granted a leave, C's failure to request a leave did not nullify C's good cause
							 due to child care problems for leaving work.
EXAMPLE 4. D had been granted a two months' leave of
							 absence for reasons of health. The collective bargaining agreement provided
							 sick leaves could be extended for a maximum of two years. D was still ill after
							 the two months and it was unknown when D's health would improve. D and the
							 employer mutually agreed an extension of the leave would be useless and D
							 resigned.
Since D had acted reasonably in obtaining a leave for
							 two months, and no useful purpose would be served by an indefinite extension,
							 D's good cause due to health reasons for leaving work was not nullified.
EXAMPLE 5. E left work because E had child care
							 problems. E did not request a leave of absence because E stated E thought
							 leaves were granted only for personal illness. However, E's employer had
							 previously granted E two separate leaves because of E's child care
							 problems.
Since E knew the employer's leave policy and had
							 taken leave in the past, E's voluntary leaving is without good cause due to E's
							 unreasonable failure to request a leave which nullifies E's good cause for
							 leaving.