OPINION BY PRESIDENT JUDGE CRUMLISH, JR., February 19, 1985:
Schuler appeals an Unemployment Compensation Board of Review order which reversed a referee's decision and denied her benefits on the ground that she voluntarily took a leave of absence. We vacate and remand.
In this appeal, Schuler, a nursing assistant, primarily contends that she is eligible for benefits notwithstanding a six-month pregnancy leave of absence.
The Board correctly concluded that Schuler voluntarily requested and received the leave of absence, a fact not in dispute. However, the Board also concluded that Schuler's voluntary request rendered her ineligible for benefits under Section 401(d)(1) of the Unemployment Compensation Law. We hold that this conclusion misinterprets the Act.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 801(d)(1).
Although, in leave of absence cases, an initial determination must be made as to the voluntariness of the separation, Grad v. Unemployment Compensation Board of Review, 66 Pa. Commw. 558, 445 A.2d 568 (1982) (citing Wincek v. Unemployment Compensation Board of Review, 50 Pa. Commw. 237, 412 A.2d 699 (1980)), this determination is now to be made under Section 402(b). "The eligibility for unemployment compensation of applicants who terminate their employment for marital, filial or domestic reasons must be determined under Section 402(b)(1); that is, each claimant must be afforded the opportunity to demonstrate that his termination was for a necessitous and compelling nature." Wallace v. Unemployment Compensation Board of Review, 38 Pa. Commw. 342, 351, 393 A.2d 43, 47 (1978).
This Court, in Wincek, stated that "[i]f the leave was involuntary and the claimant was available for work, then the claimant remains eligible for benefits under Section 401(d)." Id. at 240, 412 A.2d at 701 (emphasis added). The Board mistook this holding to mean that the voluntariness of the separation must be determined under Section 401(d)(1), which requires that a claimant be "able to work and available for suitable work." However, the Wincek Court cited Tokar v. Unemployment Compensation Board of Review, 35 Pa. Commw. 241, 385 A.2d 634 (1978), which held that the voluntariness of the separation was to be determined under Section 402(b)(2), not Section 401(d). It is only the "finding of an involuntary leave [which] necessitates a further inquiry into whether the claimant remains able to work and available for suitable work under Section 401(d)." Grad, 66 Pa. Commw. at 561, 445 A.2d at 569 (emphasis added). We hold that the Board erred as a matter of law in concluding that the voluntariness of the separation is determined under Section 401(d)(1).
This Court once held that "[a] leave of absence is ordinarily voluntary in nature, and a claimant who voluntarily leaves work because of 'marital, filial or other domestic circumstances' is ineligible for benefits by virtue of Section 402(b)(2) of the Act, 43 P. S. § 802(b)(2)." Tokar, 35 Pa. Commw. at 245, 385 A.2d at 636. However, the precise section of the Law to which the Court referred in Tokar, Section 402(b)(2)(II), was held unconstitutional in Wallace v. Unemployment Compensation Board of Review, 38 Pa. Commw. 342, 393 A.2d 43 (1978). Section 402(b)(2) was repealed in its entirety by the Act of July 10, 1980, P.L. 521.
Section 402(b)(1) was renumbered by the Act of July 10, 1980, P.L. 521, and now appears as Section 402(b).
The confusion stems from the Wincek court's citation of Tokar (approximately one year and a half after Wallace), for the proposition that "[i]f the leave was voluntary the claimant is ineligible for benefits." Wincek, 50 Pa. Commw. at 240, 412 A.2d at 701. We hold, in light of the prevailing law, that implicit in this statement is the understanding that a claimant is initially inegibile for benefits only if he voluntarily left without cause of a necessitous and compelling nature under Section 402(b).
We agree with the Board's decision insofar as it found that Schuler voluntarily requested her leave of absence but we must vacate and remand this case for findings as to whether Schuler had necessitous and compelling cause for her separation from employment and, if so, findings as to whether she was able to work and was available for suitable work.
The Board is free to take additional testimony if necessary.
Because Schuler contends that health problems justify her voluntary separation from her employment, she "must (1) introduce competent testimony that at the time of termination adequate health reasons existed to justify termination and (2) inform the employer of health problems." Southard v. Unemployment Compensation Board of Review, 71 Pa. Commw. 178, 181, 454 A.2d 661, 662-63 (1983) (citing Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 A.2d 1353 (1982).
This Court has held that a woman may not be presumed unavailable for work simply because she was placed on a pregnancy leave of absence. Wincek, 50 Pa. Commw. at 239, 412 A.2d at 701. "The test is whether the claimant is available to do some work and whether a reasonable opportunity for such work exists." Id. (emphasis in original). We hold, therefore, that a woman may not be presumed unavailable because she voluntarily took a pregnancy leave of absence for cause of a necessitous and compelling nature.
Vacated and remanded.
ORDER
The order of the Unemployment Compensation Board of Review, No. B-215895 dated March 14, 1983, is vacated and this case is remanded for findings as to whether Schuler had necessitous and compelling cause for her separation from employment and, if so, findings as to whether she was able to work and available for suitable work.
Jurisdiction relinquished.
This decision was reached prior to the resignation of Judge WILLIAMS, JR.