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Employment Development Department
Employment Development Department

Able and Available AA 285

Leave of Absence or Vacation

This section discusses the availability of claimants who file claims during a leave of absence or vacation from their regular employer. For a discussion of the related separation issue, refer to VQ 285. When a claimant is in receipt of compensation for the period of absence from work, refer to TPU 460.

A. General

The Unemp. Ins. Code makes no special provisions for determining the availability of claimants who file claims during a leave of absence or vacation. Therefore, the general availability requirements described in AA 5 should be applied in these cases. Briefly stated, determination interviewers should apply the two-step availability test established by the California Supreme Court in Sanchez v. CUIAB:

See AA 5 for a complete discussion of the two-step test.

When a claimant requests time off from work, there is a strong presumption of unavailability since the individual could have been working. However, the fact that a claimant is temporarily unemployed and will probably return to his or her regular employer does not automatically render the claimant unavailable for work. Each case must be considered on its individual merits based on the two-step availability test.

B. Attachment to Labor Market

If the claimant files a claim while on a leave of absence or vacation, the claimant may or may not profess to be available for work. A claimant who arranges for vacation usually does so for the specific purpose of not working. A person who arranges for a leave of absence does so out of a need or desire to resolve health or domestic problems, attend to personal affairs, or to attend school. To determine the claimant’s availability under these circumstances, refer to the section that discusses the reason for the leave.

If the claimant acknowledges that he or she is not ready, willing, and able to accept immediate employment during the absence from work, the claimant should be disqualified for not meeting the basic requirement of Section 1253(c).

When a claimant alleges to be available for employment during a vacation or leave of absence, the following circumstances should be documented:

If the claimant establishes good cause for any restriction on availability, he or she would be eligible if available to a s ubstantial field of employment.

Note: In rare cases, a claimant may be placed on a mandatory leave of absence. The claimant did not request the leave and places no restrictions on acceptable work. In these cases, no availability issue exists.

C. Restricted Availability

See AA 5 for a discussion of restrictions and good cause.

When an employer grants a claimant’s request for a leave of absence, determine whether the claimant has placed any restrictions on acceptable work. For example, a claimant requested time off because of a serious conflict with a co-worker. He is using the time away from work to find another job. The claimant will consider all offers of suitable work from other employers. In this case, the claimant’s restriction to work other than his regular employer probably has not materially reduced his availability, depending on the claimant’s occupation and labor market conditions, and he may be eligible under Section 1253(c). (This example illustrates only the availability issue; other issues may also exist which require resolution.)

When a claimant requests a leave of absence for reasons that are not good cause and these reasons materially affect the individual’s availability for work, the claimant would be ineligible under Section 1253(c). For example, a claimant who works weekends is granted a leave of absence because she wants to spend some quality time with her family. During the leave, she will accept only weekday work because she no longer wants to work weekends. Weekend work is normal in the claimant’s occupation. Since the claimant has materially reduced her availability for work for reasons that are not good cause, she is ineligible under Section 1253(c).

However, if good cause is found for the claimant’s restriction, it is necessary to determine for what type of suitable work, and under what conditions, the claimant is available. Once this is established, determine whether the claimant is available to a substantial field of employment.

Example 1:

The claimant is a long-haul truck driver. His elderly mother was recently assaulted in her home. Although physically recovered, his mother still suffers distress at night if she is left alone. The doctor has recommended that the claimant remain overnight at his mother’s home for the next month. The claimant’s employer has no local driving positions available and grants a leave of absence so the claimant can remain in town overnight. The claimant is able to work during the day, and he is seeking temporary work as a local truck driver. There is a significant labor market for local truck drivers in the claimant’s area. Since the claimant has good cause for his restrictions (cannot work for regular employer and cannot drive distances which require overnight travel) and remains available to a substantial field of employment, he is available for work during his leave of absence.

Note: It is not necessary to show that openings for temporary workers actually exist to establish a substantial field of employment. All that is required is that temporary jobs exist in the area.

However, when a claimant is unwilling to accept other employment because of the terms of a leave of absence, the claimant is not available to a substantial field of employment and should be disqualified.

Example 2:

The claimant was granted a six-month leave of absence because of his wife’s health. Under the terms of the leave, the claimant was subject to immediate termination if he accepted other employment while on leave. Since the claimant intended to return to work for this employer, he was unwilling to accept other work which would terminate his leave and his right to return to work. Since the claimant was not available to a substantial field of employment, the claimant was not available for work.

For further discussion of restriction to a single employer, see AA 510.