Board of Review Decision 352-N42R-L2N4

The claimant had an urgent, compelling and necessitous reason to leave her employment, because she was caring for her son while he attended medical appointments and underwent medical procedures. However, she is not eligible for benefits pursuant to G.L. c. 151A, § 25(e)(1), because she failed to take reasonable steps to preserve her employment or show that such efforts would have been futile.

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Issue ID: 352-N42R-L2N4

Board of Review Decision

Introduction and Procedural History of this Appeal 

The claimant appeals a decision by a review examiner of the Department of Unemployment Assistance (DUA) to deny unemployment benefits. We review, pursuant to our authority under G.L. c. 151A, § 41, and affirm. 

The claimant resigned from her position with the employer on April 24, 2025. She filed a claim for unemployment benefits with the DUA, effective June 15, 2025, which was approved in a determination issued on September 23, 2025. The employer appealed the determination to the DUA hearings department. Following a hearing on the merits attended only by the employer, the review examiner overturned the agency’s initial determination and denied benefits in a decision rendered on December 22, 2025. We accepted the claimant’s application for review.

Benefits were denied after the review examiner determined that the claimant voluntarily left employment without good cause attributable to the employer or urgent, compelling, and necessitous reasons and, thus, was disqualified under G.L. c. 151A, § 25(e)(1). After considering the recorded testimony and evidence from the hearing, the review examiner’s decision, and the claimant’s appeal, we remanded the case to the review examiner to give the claimant an opportunity to testify and provide other evidence. Both parties attended the remand hearing. Thereafter, the review examiner issued her consolidated findings of fact. Our decision is based upon our review of the entire record. 

The issue before the Board is whether the review examiner’s decision, which concluded that the claimant restaurant worker did not take reasonable steps to preserve her employment or show that such efforts would have been futile, is supported by substantial and credible evidence and is free from error of law.

Findings of Fact

The review examiner’s consolidated findings of fact and credibility assessment are set forth below in their entirety:

1. Prior to filing for benefits, the claimant worked as a host, line cook, and shift supervisor for the employer, a restaurant. The claimant began working for the employer in March 2017. She worked a part-time schedule, an average of about twenty to twenty-five hours per week, and earned between $19.00 and $21.00 per hour, depending on the position.
2. The claimant’s supervisor was the employer’s general manager.
3. The claimant has two children. One of the claimant’s children was diagnosed with “down syndrome” that requires “extreme attention”.
4. In January and February 2025, the claimant knew her child’s medical appointment schedule.
5. On 2/13/2025, one of the employer’s managers and the claimant had a “hostile conversation” over the telephone after the claimant declin[ed] to host that evening’s trivia game. 
6. On 2/13/2025, the claimant left the employer’s premises prior to the end of her shift because of her telephone conversation with the manager.
7. During the week of 2/14/2025 through 2/20/2025, the employer’s general manager met with the claimant and gave her a warning for the incident that occurred on 2/13/2025.
8. In March 2025, the claimant spoke to her supervisor regarding her child’s medical appointments. The supervisor advised the claimant that the employer could reduce her schedule to as little as one shift per week. The claimant replied that she could not commit to performing even a single shift each week. The supervisor then advised the claimant to file forms for medical leave through the employer’s human resources online platform. The claimant responded that she would apply for medical leave.
9. On 3/16/2025, the claimant left a letter for the employer’s supervisor stating that she was “requesting permission for a Family Medical Leave of absence,” adding that her child “is facing many medical challenges being addressed by specialists with (a) Hospital. There are three surgical procedures that need my attention. I will be provided two documents confirming the reasoning. I am unable to commit to my responsibilities with my position in the restaurant at this time.”
10. The claimant last performed work for the employer on 3/16/2025. 
11. On 3/17/2025, the employer’s supervisor messaged the claimant that he had reviewed her letter and renewed his recommendation that the claimant request medical leave, providing the claimant with directions on how to apply.
12. On 3/17/2025, the claimant advised the employer that she was unavailable to work her next scheduled shift on 3/22/2025 and to find coverage.
13. The supervisor removed the claimant from the schedule.
14. The claimant’s job was not in jeopardy.
15. The employer kept the claimant’s position open for her return.
16. The claimant did not apply for medical leave.
17. On 4/3/2025, the claimant emailed a two weeks’ notice of resignation to the employer, effective on or about 4/24/2025. The employer accepted the claimant’s resignation.
18. The employer had available work at the time of the claimant’s resignation.
19. On 9/23/2025, the Department of Unemployment Assistance (“DUA”) issued a Notice of Approval to the employer. The employer appealed that determination.

[Credibility] Assessment:

During the hearing, the claimant offered extensive testimony about her separation from the instant employer. The claimant testified about her child’s medical condition and needs resulting in frequent changes to her schedule with the employer. The claimant attested that there was an incident that resulted in her decision to “take a step back fully for (her) son’s medical care” and put in her two weeks’ notice, referencing 2/13/2025, when she was involved in a “hostile conversation” with the employer’s “second manager that was coming in to work the night shift” following the claimant’s refusal to host a trivia game at the employer’s location after the trivia host called out. The claimant testified that during that week, on or about 2/13/2025 through 2/20/2025, she worked an additional shift when she met with the employer’s general manager, who gave the claimant a final written warning for insubordination and walking off her shift on 2/13/2025. She vaguely recalled a second conversation during the same week-long period when the employer’s general manager discussed scheduling coverage with the claimant. The claimant attested that she did not work for the employer throughout the rest of the month until 3/16/2025, when she tendered her notice of resignation. She later affirmed that she emailed her notice of resignation on 4/3/2025.

The claimant stated that she did not work for the employer following the week ending on or about 2/20/2025, and through 3/15/2025, because she “was no longer placed on the schedule… not given any shifts in the portal… and (she) was not contacted.” She stated she was not on the schedule “for two to three weeks” prior to 3/16/2025. The claimant provided illogical testimony regarding the employer’s scheduling practices in relation to her schedule for the period directly following the week ending 2/20/2025. She initially testified that the employer posted shifts seven days in advance on the employer’s portal. The claimant failed to reasonably reply to the query when she determined that the employer had removed her from the schedule.

Moreover, the claimant offered further vague and inconsistent testimony that she met with the employer’s general manager on or about 3/17/2025 and provided him with a medical note excusing her from work for the period beginning 3/17/2025 through 3/22/2025, the date of her next schedule[d] shift.

For his part, the employer’s witness directly responded to the claimant’s testimony, stating that the claimant worked for the employer on 2/23/2025, 2/25/2025, 3/6/2025, 3/7/2025, 3/9/2025, 3/14/2025, and 3/16/2025 and provided the specific hours and roles the claimant performed each shift. The claimant then affirmed that she did work for the employer on the dates provided by the employer’s witness. Given the claimant’s admittedly contradictory testimony, it cannot be deemed credible.

Ruling of the Board

In accordance with our statutory obligation, we review the record and the decision made by the review examiner to determine: (1) whether the consolidated findings are supported by substantial and credible evidence; and (2) whether the review examiner’s conclusion is free from error of law. Upon such review, the Board adopts the review examiner’s consolidated findings of fact and deems them to be supported by substantial and credible evidence. We further believe that the review examiner’s credibility assessment is reasonable in relation to the evidence presented. 

Since the claimant resigned from her employment to care for her child, we analyze her eligibility for benefits under G.L. c. 151A, § 25(e), which provides, in pertinent part, as follows: 

[No waiting period shall be allowed and no benefits shall be paid to an individual under this chapter] . . . (e) For the period of unemployment next ensuing . . . after the individual has left work (1) voluntarily unless the employee establishes by substantial and credible evidence that he had good cause for leaving attributable to the employing unit or its agent . . .

An individual shall not be disqualified from receiving benefits under the provisions of this subsection, if such individual establishes to the satisfaction of the commissioner that his reasons for leaving were for such an urgent, compelling and necessitous nature as to make his separation involuntary. 

The express terms of these provisions place the burden of proof upon the claimant.

Our standard for determining whether a claimant’s reasons for leaving work are urgent, compelling and necessitous has been set forth by the Supreme Judicial Court. We must examine the circumstances in each case and evaluate “the strength and effect of the compulsive pressure of external and objective forces” on the claimant, to ascertain whether the claimant “acted reasonably, based on pressing circumstances, in leaving employment.” Reep v. Comm’r of Department of Employment and Training, 412 Mass. 845, 848, 851 (1992). “[A] ‘wide variety of personal circumstances’ have been recognized as constituting ‘urgent, compelling and necessitous’ reasons under” G.L. c. 151A, § 25(e), “which may render involuntary a claimant’s departure from work.” Norfolk County Retirement System v. Dir. of Department of Labor and Workforce Development, 66 Mass. App. Ct. 759, 765 (2009), quoting Reep v. Comm’r of Department of Employment and Training, 412 Mass. 845, 847 (1992). Medical conditions are recognized as one such reason. See Dohoney v. Dir. of Division of Employment Security, 377 Mass. 333, 335–336 (1979) (pregnancy or a pregnancy-related disability, not unlike other disabilities, may legitimately require involuntary departure from work). 

Consolidated Findings 3, 8-9, and 17 establish that the claimant’s primary reason for resigning from her employment in April, 2025, was to care for her child, who was diagnosed with Down Syndrome and had many medical issues and appointments and multiple upcoming surgeries. Because the claimant needed to be available to care for her child as he underwent multiple medical procedures and attended appointments, she was not available to work for the employer at the time of her separation. Based on these circumstances, the claimant has demonstrated urgent, compelling and necessitous reasons to leave her job.

However, our inquiry does not stop here. “Prominent among the factors that will often figure in the mix when the agency determines whether a claimant’s personal reasons for leaving a job are so compelling as to make the departure involuntary is whether the claimant had taken such ‘reasonable means to preserve her employment’ as would indicate the claimant’s ‘desire and willingness to continue her employment.’” Norfolk County Retirement System, 66 Mass. App. Ct. at 766, quoting Raytheon Co. v. Dir. of Division of Employment Security, 364 Mass. 593, 597–98 (1974).

The review examiner determined that the claimant did not make a reasonable effort to preserve her employment, because she did not apply for a medical leave of absence. Consolidated Finding 16. An employee is not required to request a leave of absence to show reasonable attempts to preserve employment. Guarino v. Dir. of Division of Employment Security, 393 Mass. 89, 94 (1984). However, here, because there was no indication that the claimant would be permanently unavailable for work, a medical leave of absence was a potentially viable means by which she could have preserved her employment. In fact, the claimant’s supervisor encouraged her to apply for a medical leave and gave her instructions about how to do so after she shared her child’s medical circumstances and her unavailability with the supervisor. Consolidated Findings 8 and 11. Under the circumstances, we do not believe that the claimant acted reasonably when she failed to pursue a medical leave of absence.

We, therefore, conclude as a matter of law that, pursuant to G.L. c. 151A, § 25(e), although the claimant had an urgent, compelling, and necessitous reason to separate from her employer, she did not take reasonable steps to preserve her employment.

The review examiner’s decision is affirmed. The claimant is denied benefits for the week beginning June 15, 2025, and for subsequent weeks, until such time as she has had at least eight weeks of work and has earned an amount equivalent to or in excess of eight times her weekly benefit amount. 

Boston, Massachusetts                                              Date of Decision – April 29, 2026

Charlene A Stawicki, Esquire
Member

Michael J. Albano
Member

Any further appeal would further appeal further appeal would be to a Massachusetts State District Court.
(See Section 42, Chapter 151A, General Laws, Enclosed)

The last day to appeal this decision to a Massachusetts District Court is thirty days from the mail date on the first page of this decision. If that thirtieth day falls on a Saturday, Sunday, or legal holiday, the last day to appeal this decision is the business day next following the thirtieth day.

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Please be advised that fees for services rendered by an attorney or agent to a claimant in connection with an appeal to the Board of Review are not payable unless submitted to the Board of Review for approval, under G.L. c. 151A, § 37.

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