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Employment Development Department
Employment Development Department

Trade Dispute TD 200

Refusal to Return from Vacation, Sick Leave, Leave of Absence

To be ineligible under Section 1262, a claimant must have left his/her work because of a trade dispute. A claimant who is on leave of any kind - vacation, sick leave, leave of absence, etc., - when the trade dispute begins has not left his/her job because of the trade dispute. However, when the claimant fails to return to work at the end of the leave because the trade dispute is still in active progress, he/she has, as of that date, voluntarily left his/her work because of a trade dispute. The employer-employee relationship continues during a leave and, therefore, the claimant is considered to have left work at the expiration of the leave if he/she fails to return to work at that time.

Failure to Return from Vacation

In Benefit Decision 6589, the union struck the employer’s place of business on August 18. The claimant was on vacation at that time and was scheduled to return to work on August 25. He did not resume his work at the expiration of the vacation because of the picket line.

The Board held that the claimant was ineligible as of the date he failed to return to work.

Failure to Return from Sick Leave

In Benefit Decision 5321, the claimant was on sick leave from April 1 through April 5. On the afternoon of April 5, the claimant’s union declared a strike against the employer and placed a picket line at the employer’s place of business. On April 6, the claimant recovered from her illness and was able to return to work, but she did not do so because of the strike. The strike continued through May 18, and the claimant returned to work on May 22.

The Board held the claimant left her work because of a trade dispute and said:

"The claimant was unable to return to her former position from April 1 through April 5, 1948, due to illness and thereafter, although able to return, she did not return because of the strike which had been called on the afternoon of April 5. It is our opinion that under the circumstances presented, the failure of the claimant to report for work on April 6, 1948 was a leaving of work because of a trade dispute within the meaning of Section 56(a) (1262) of the Unemployment Insurance Act."

Failure to Return from Leave of Absence

In Benefit Decision 5347, the claimant ceased working in October, 1947, when the employer granted her an indefinite leave of absence because of pregnancy. On December 8, 1948, the claimant made arrangements for child care and prepared to return to her former position. She did not report when she learned that there was a labor dispute at the employer’s establishment, which had begun while she was on leave. The Board held that the claimant was ineligible under Section 1262, and said:

". . . we held that a claimant who voluntarily fails to return to work upon the expiration of a valid absence from work, due to a trade dispute which has come into being during her absence, is deemed to have left her work because of the trade dispute, as of the date she would normally have returned to work . . . we further held that a claimant’s failure to make an honest and genuine attempt to go to work in the course of a trade dispute amounts to a voluntary leaving of work because of such a dispute. The aforesaid principles are clearly applicable to the facts of the instant appeal and we hold, therefore, that the claimant herein left her work because of a trade dispute when she failed to report following December 8, 1948 . . . ."

In Benefit Decision 6716, the claimant was on a medical leave of absence because of an industrial injury when the strike began. He was released for work on September 5, and was to return to work on September 10, 1961. He did not receive any notice from the employer that he had been permanently replaced, as did the other striking employees. He did not return to work for the employer because he did not wish to cross the picket line. The Board held:

"With respect to claimant Schultz, he was on a leave of absence because of illness when the trade dispute began . . . claimant Schultz was not notified that he had been replaced . . . The employment relationship was merely suspended during claimant Schultz’s leave of absence and, in the absence of clear and convincing evidence that the relationship was terminated by discharge and permanent replacement prior to his recovery, continued until that time . . . Therefore, we hold that the claimant left his work because of a trade dispute when he failed to return to work from his leave of absence after his recovery, and was ineligible for benefits indefinitely beginning September 10, 1961, under Section 1262 of the Code."