Total and Partial Unemployment TPU 80.15

Leave of Absence or Vacation

This category discusses the employment status of a claimant who is on a leave of absence or vacation. Clearly a person who is on a leave of absence or vacation is no longer performing a "service" for his employer. However, it is possible that the person not performing service is still employed because to be unemployed he must perform no service and receive no wages. Severance of the employer-employee relationship is not necessary to establish that a claimant is unemployed.

In deciding whether an extended period of time off from work is a bona fide leave of absence, the deciding factor is whether or not the employer-employee relationship has been preserved. A leave of absence preserves the employment status if both employer and employee agree to its terms and if it guarantees or offers reasonable expectance of return to work. The employment relationship is preserved only if the employee intends to return to the employer and complies with the terms of the leave. The employment can be terminated during the leave period by either party.

Without a strong assurance of reinstatement there is no leave of absence and the employer-employee relationship is not preserved. For example, one employer may terminate a woman's employment because of pregnancy and tell the employee that she will be favorably considered for re-employment when she is ready to return to work. Such a promise, lacking a guarantee of rehire, preservation of seniority, and pension rights, or other benefits of continuous service, does not preserve the employment relationship.

The employment status of a claimant on leave of absence was decided by the court in Douglas Aircraft Company, Inc. v California Unemployment Insurance Appeals Board, et al. (citations omitted). The court held that a leaving of work within the meaning of Sections 1032 and 1256 occurred even though, because of the leave of absence, there had been no technical severance of the employment relationship.

In Benefit Decision 6610 the Board considered the case of a claimant who requested a leave of absence because of pregnancy. The Board held that the claimant "left" her work at the time of the leave, but did not sever the employer-employee relationship at that time, and said:

". . . we have held that a claimant may have left her work even though the employment relationship is not terminated because of a leave of absence. . .

In the present case, the claimant did cease working but she did not relinquish or yield her position. On the contrary, she sought and obtained a leave of absence which preserved the employment relationship until she was ready to return to work. . ."

In determining whether the claimant is unemployed or not, it is necessary to apply the same test as in other cases - is the claimant performing any service OR receiving any wages. This question came up in the case of a civil service fire fighter who was placed on leave pending the decision concerning his disability retirement and who, after using all accrued sick and annual leave, was put on leave without pay. This claimant was held to be unemployed during the period of leave without pay.

So, a claimant on leave or vacation, who performs no service, is unemployed if he is not in receipt of wages and employed if he is in receipt of wages.

The claimant on leave is performing no service and receiving no wages. In these cases, the Board has held that such a claimant is unemployed.

For example, in Benefit Decision 6061, the claimant requested a leave of absence because his wife was in poor health, and a physician recommended a change of climate. Under the terms of the collective bargaining agreement in effect at the establishment where the claimant last worked, his leave of absence was subject to immediate termination if he accepted other employment. The claimant was unwilling to accept any employment which would jeopardize his return to work at the end of his leave of absence. The claimant intended to return to his former work at the end of his leave of absence. In holding that the claimant was unemployed, the Board said:

"When the claimant herein filed his claim for benefits he was not performing services for his employer and was not in receipt of wages. Therefore, he was unemployed . . . "

A claimant who is on an unpaid vacation is unemployed during the period of the vacation leave. In Benefit Decision 5734 the Board considered the case of claimants who were on vacation, and not entitled to vacation pay. In holding that the claimants were partially unemployed, the Board said:

"We conclude that none of the claimants were totally unemployed in excess of two consecutive weeks, that each of the claimants for the week or weeks involved earned less than his weekly benefit amount, was employed by a regular employer, worked less than his normal customary full-time hours for such regular employer because of lack of full-time work, and was during the week or weeks involved continuously attached to his employer from the standpoint that there did not occur any severance of the employer-employee relationship. The claimants, therefore, were partially unemployed. . . "

Had the vacation been for more than two weeks, the claimants would not have qualified as partially unemployed. This is covered in Title 22 Section 1326-8 which states:

"(c) An individual who has filed a subsequent partial claim for two successive pay period weeks during which he or she performed no services for his or her regular employer with respect to which wages were payable to him or her shall, at the time he or she certifies to such second week of unemployment, file an additional claim as a totally unemployed-individual in accordance with Section 1326-4 of these regulations. Thereafter he or she shall file continued claims as a totally unemployed individual in accordance with Section 1326-6 of these regulations. The department shall give prompt notice to the claimant’s last employer of an additional claim filed under this section."