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Espina v. Board of Review

402 N.J. Super. 87, 952 A.2d 1108 (App. Div. 2008)

UNEMPLOYMENT; LEAVES OF ABSENCE — Under governing regulations, an employee cannot be deemed to have abandoned employment by failing to return to work until the expiration of five consecutive days from the last day of an approved leave of absence.

An employee took maternity disability and then family medical leave because of pregnancy and the need to care for her infant. Upon the expiration of her family medical leave, she got an additional week of unpaid leave from her employer based on her inability to find childcare. On the day she was expected to return, she asked for an additional week of leave. Her employer responded that she was now on an unauthorized leave of absence, and expected her to return to work two days later. When she failed to appear two days later, her employer sent her a certified letter terminating her employment that same day. The employee applied for unemployment benefits. The employer filed a challenge. Ultimately, the unemployment board denied benefits, finding the claimant had left work voluntarily without good cause. The employee appealed to the Appellate Division, claiming the board arbitrarily and unreasonably neglected governing regulations.

The Appellate Division agreed with her, holding that under governing regulations an employee cannot be deemed to have abandoned employment by failing to return to work until the expiration of five consecutive days from the last day of an approved leave of absence. Therefore, the Court found the employee merited unemployment benefits because her employer terminated her the day she was expected to return to the office by virtue of her employer’s last directive. It held that the employer was not obligated to rehire the employee, but that the employee was permitted to collect unemployment benefits because she had been terminated before the expiration of the required five-day period.


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