STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

KIYI L AIKENS, Employee

DEPARTMENT OF REGULATION & LICENSING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01000679MD

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee has worked for the employer for about three and a half years as a clerical assistant.

In the last months of her employment the employee had some personal problems that were spilling over into her work. She made requests for schedule changes to accommodate her personal issues, but these requests were denied. The employer noticed that the employee had become aggressive in her mannerisms, had loud outbursts at workers, and ignored greetings. The employer indicated that it was not comfortable with the employee's behavior.

On December 18, 2000, the employer sent the employee to a psychologist, Dr. Hummel, and told her she could not return to work until a psychological evaluation was completed. On December 21 the employee saw Dr. Hummel, who diagnosed her with depression and prescribed medication. Dr. Hummel's report indicated that the employee was not psychologically able to perform the job duties of her current position at that time. He recommended a leave of absence or, in the alternative, that the employee be assigned to a different work group. The employer indicated that it could not effectuate a transfer for the employee.

On January 4, 2001, the employee was told she had three options: quit her job, be discharged, or take a medical leave of absence, and was given 11 hours in which to decide. Wanting to keep her job, she chose the leave of absence. The employer prepared a family and medical leave request, which the employee signed. The form indicates that the employee has a serious health condition and grants her a twelve-week leave until March 29, 2001.

An employee is ineligible for benefits while she is on family or medical leave under the federal or state family and medical leave acts. See Wis. Stat. § 108.04(1)(b)3.

In this case, the appeal tribunal found that the medical leave was imposed on the employee and that her resulting unemployment was not due to any voluntary action on her part. The appeal tribunal therefore reasoned that benefits could not be denied under the applicable section of the law. The commission, like the appeal tribunal, recognizes that the family and medical leave acts were enacted for the benefit and protection of workers, and it has some difficulty with the notion of an employer imposing family and medical leave on an unwilling employee. However, the statute clearly disqualifies employees from receiving unemployment benefits while on family and medical leave, without regard to whether that leave is taken voluntarily. The commission is constrained to apply the law as it was written by the Legislature and to conclude that the employee was ineligible for benefits while on family and medical leave.

The commission therefore finds that beginning in week 1 of 2001 the employee was on medical leave pursuant to Wis. Stat. § 108.04 (1)(b)3. She is therefore ineligible for benefits as of that week and until her leave is exhausted and/or she returns to work.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning week 1 of 2001 and until her leave is exhausted and/or she returns to work. There is no overpayment as a result of this decision.

Dated and mailed May 30, 2001
aikenki . urr : 164 : 1 AA 127   AA 240  VL 1023.15

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: The commission did not confer with the appeal tribunal regarding witness credibility and demeanor. The commission's reversal of the appeal tribunal decision is not based upon credibility, but is as a matter of law.

cc: Attorney William Dusso

 


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uploaded 2001/05/31