PATRICIA L SULLIVAN, Employee

COUNTY OF FOND DU LAC, Employer

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:

The employee worked for about one year as a certified nursing assistant for the employer, a nursing and rehabilitation facility for the elderly and disabled. The last day that she worked was November 14, 2002 (week 46). On or about the employee's last day of work she advised the employer that her doctor had restricted her to light-duty work. The employee could not lift more than 35 pounds. The restrictions were due to the employee's pregnancy. The employer had no light-duty work available for her. The employee's employment was suspended at that time because she was unable to perform suitable work otherwise available with the employer. The employee initiated a benefit claim in week 47 of 2002 and began receiving benefits.

On January 10, 2003 (week 2), the employee submitted a Family and Medical Leave form to the employer. Pursuant to that form and medical documentation submitted to substantiate the need for leave under the Family and Medical Leave Act (FMLA), the employee was placed on FMLA leave. The employer was required under the provisions of the FMLA to continue the employee's health benefits while she was on such leave.

The issue to be decided is whether the employee was on family or medical leave under the FMLA in weeks 2 through 13 of 2003.

Wisconsin Stat. § 108.04(1)(b) provides as follows:

(b) An employee is ineligible for benefits:

1. While the employee is unable to work, or unavailable for work, if his or her employment with an employer was suspended by the employee or by the employer or was terminated by the employer because the employee was unable to do, or unavailable for, suitable work otherwise available with the employer;

2. While the employee is on a voluntary leave of absence granted for a definite period, until the period ends or until the employee returns to work, whichever occurs first; except as provided in par. (c); or

3. While the employee is on family or medical leave under the federal family and medical leave act of 1993 (P.L. 103-3) or s. 103.10, until whichever of the following occurs first:

a. The leave is exhausted.

b. The employer is required to reinstate the employee under 5 USC 6384 or s. 103.10(8).

c. The employee returns to work.

The employee was on FMLA leave beginning in week 2 of 2003. The leave was exhausted after 12 weeks, or in week 13 of 2003. The employee was ineligible for benefits while on such leave pursuant to Wis. Stat. § 108.04(1)(b)3.

The commission therefore finds that in weeks 2 through 13 of 2003, the employee was on a medical leave under the FMLA of 1993 pursuant to Wis. Stat. § 108.04(1)(b)3.

The commission further finds that the employee was paid benefits in the amount of $2,250.00 for weeks 2 through 5 and 7 through 12 of 2003, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits in weeks 2 through 13 of 2003. Thereafter, the employee is eligible for benefits if she is otherwise qualified. She is required to repay the sum of $2,250.00 to the Unemployment Reserve Fund.

Dated and mailed May 6, 2004
sullipa . urr : 132 : 1 : VL 1023.15

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission disagrees with the ALJ's reasoning that the employer cannot place the employee on FMLA leave. The language of Wis. Stat. § 108.04(1)(b)3., does not indicate either that the employee need be the moving party in seeking FMLA leave or that her request need be voluntary.  Where the actions of the employee must be voluntary to result in benefit suspension, ch. 108 so specifies. See, e.g. Wis. Stat. § 108.04(1)(b)2.; Wis. Stat. § 108.04(7)(a); and Wis. Stat. § 108.04(7m).  The ALJ reasoned that nothing in Kelly Co. Inc. v. Marquardt, 172 Wis. 2d 234 (1992), suggests that an employer may require an employee to take FMLA leave.  While this may be true, whether an employer can require an employee to take FMLA leave was not one of the issues being addressed by the Wisconsin Supreme Court.  Rather, in Kelly Co. Inc. the Court addressed issues related to the employee's return from, rather than placement on or request for, FMLA leave.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2004/05/10