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 1256-31 - Discharge for Misconduct -Absence from Work

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
(a) Scope. This section relates to discharges
						  for misconduct due to absence from work. Section
						  1256-30 of these regulations set
						  forth general principles also applicable under this section.
(b) Excused Absences. If an employer has
						  given an employee prior approval for an absence from work, or grants approval
						  when notified by the employee of an absence, a discharge of that employee for
						  that absence from work is not for misconduct unless unusual circumstances are
						  presented.
Employer rules or collective bargaining agreement
							 terms may provide procedures governing requests for extension of a leave of
							 absence. Reasonable steps to substantially comply with such procedures is a
							 duty of the employee, and a discharge for failure to so comply is for
							 misconduct.
An employee who has been granted an indefinite leave
							 of absence for a specific purpose which is accomplished and who thereafter
							 engages in other unauthorized activities for the balance of his or her absence
							 without notice to the employer, may be discharged for this reason. This
							 employee is discharged for misconduct unless there are compelling reasons for
							 the continued absence and the failure to give notice.
If an employee deliberately gives false reasons to
							 the employer to obtain a leave of absence from work and the employee knew or
							 should have known that the leave of absence would not have been approved by the
							 employer had the true reasons for the absence been known, a discharge of the
							 employee for dishonesty in these circumstances is for
							 misconduct.
(c) Unexcused
						  Absences. Except for an isolated instance of a short period of unexcused
						  absence for the first time due to an employee's good faith error in judgment,
						  and except as provided in subdivision (d) of this section, an employee who is
						  discharged by the employer due to the employee's absence from work without
						  prior approval of the employer is discharged for misconduct if any of the
						  following conditions exists:
(1) The employee
						  did not have a real, substantial, and compelling reason for, and continuing
						  during the period of, the absence from work of such nature that a reasonable
						  person genuinely desirous of retaining employment would have been absent from
						  work, and the employer has not condoned the employee's absence by failing to
						  warn or reprimand the employee if prior similar unexcused absences from work
						  have occurred.
(2) The employee has
						  not, personally if reasonably possible or by a reliable agent and with
						  reasonable promptness under the circumstances, notified the employer of the
						  employee's absence from work and the reasons for the absence, where notice to
						  the employer is reasonably feasible, and there is no real, substantial, and
						  compelling reason to excuse the failure to give such notice.
COMMENTS. An employee who is absent from work without
							 prior approval of the employer under circumstances which reasonably justify an
							 inference that the employee intends never to return to work has voluntarily
							 left his or her work, even if the employer later purports to discharge the
							 employee (see Sections
							 1256-1 to
							 1256-23, inclusive, of these
							 regulations for interpretations as to whether particular reasons for
							 voluntarily leaving work are good cause for the leaving).
In determining whether a discharge is for misconduct
							 where an unexcused absence is involved, the primary elements are whether the
							 absence was due to compelling reasons, and whether the employee notified the
							 employer in order to protect his or her job or, if not, had compelling reasons
							 for the failure to give notice. A first-time short period of absence generally
							 is not misconduct warranting discharge, unless aggravated by facts imposing an
							 unusual duty in a particular case. Compelling reasons for absence combined with
							 adequate and prompt notice to the employer mean that any discharge based on the
							 absence is not for misconduct. Compelling reasons for absence but an
							 inexcusable failure to give notice to the employer mean that a discharge for
							 the failure to give notice is for misconduct, even though the absence itself is
							 justified by the compelling reasons. Noncompelling reasons for absence justify
							 discharge for misconduct even if prompt notice to the employer is given, unless
							 condoned by lack of prior warnings or reprimands as discussed below.
If compelling reasons for an employee's absence from
							 work exist, as interpreted under subdivision (c) above, prior warnings or
							 reprimands by the employer do not negate the compelling reasons. Prior warnings
							 or reprimands are pertinent, however, if the employee does not have compelling
							 reasons. In that case, since the lack of prior warnings or reprimands by the
							 employer condones a pattern of unexcused absences, the employee's lack of
							 willfulness in violating any duty to the employer is apparent; there is no
							 misconduct. On the other hand, an employer's prior warnings or reprimands for
							 unexcused absences due to noncompelling reasons followed by a repeated similar
							 absence justifies a discharge for misconduct even if the employee notifies the
							 employer of his or her unwarranted absence for noncompelling reasons. Prior
							 notice does not convert noncompelling reasons to compelling reasons, and the
							 employer has not condoned unexcused absences.
A compelling reason for an unexcused absence may also
							 justify failure to give notice to the employer. For example, a death of a
							 member of the employee's family, as defined by Section
							 1256-9 of these regulations,
							 excuses the absence and also excuses failure to give notice, and there is no
							 misconduct to warrant a discharge.
The employee's obligation to give notice to the
							 employer of the reasons for an unexcused absence include the duty to give
							 continuing notice and the probable date of return to work. For example, an ill
							 employee should tell the employer when the employee expects to recover and
							 return to work, or advise that the employee can return to work only when
							 released by a doctor if such is the case and promptly inform the employer of
							 any change in the circumstances as to return to
							 work.