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

TERRI L FERDON, Employee

JMS CONVERTERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04404220AP


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Delete the fourth sentence of the second full paragraph on page 3 of the administrative law judge's FINDINGS OF FACT AND CONCLUSIONS OF LAW and insert therefor:

"Pursuant to 29 CFR § 825.203(d), an employer cannot require an employee to take more FMLA leave than necessary to address the circumstances that precipitated the need for leave. As of week 49 of 2004, the employee was no longer on leave under the FMLA."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is not eligible for benefits in the period from week 43 through week
48 of 2004. Beginning in week 49 of 2004, she is again eligible for benefits, if otherwise qualified.

Dated and mailed July 8, 2005
ferdote . umd : 132 : 1 AA 127

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission has reviewed the record and agrees with the administrative law judge's conclusion that as of week 49 of 2004 the employee was not on FMLA leave. The employee was able to return to work although she would need time off for treatment and recovery. The employer would not allow the employee to return to work until she was "100%." The commission has modified the decision to reflect that the employee was no longer on FMLA leave because under the FMLA the employer cannot require an employee to take more leave than necessary to address the circumstances that precipitated the need for leave, except for certain situations applicable only to employees of schools.

cc:
Attorney Patrick P. Gill
Attorney Brian C. Hough


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


uploaded 2005/07/11