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

LAURIE K ORR, Employee

WISCONSIN VETERANS HOME, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05402161AP


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 25 of 2005, and until the leave is exhausted, the employer is required to reinstate the employee under 5 USC 6384 § 103.10(8), or the employee returns to work.

Dated and mailed November 10, 2005
orrlaur . usd : 132 : 1  AA 127

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee argues that she was erroneously told that she could not work while taking narcotics and for that reason was on FMLA leave. The employee maintains that since she could have done her job she should not be ineligible for benefits. However, the commission agrees with the ALJ's analysis in this case. The fact is the employee was on a FMLA leave beginning in week 25 of 2005. The employee's doctor certified that such leave was necessary. Whether or not it was because the employer indicated she could not work while on narcotics, she was on leave that qualified as FMLA leave. Further, it was the employee who approached the employer on June 14 and informed the employer that she found herself making medication errors. FMLA leave is used when a worker is unable to perform an essential function of her position. The commission would submit that dispensing medication fits the definition of an essential function. The employee's doctor was adjusting and changing the employee's medication causing a variety of different problems from forgetfulness to fainting. The commission has previously held that the employer can designate time off work to be FMLA leave. The statute does not question whether the employee voluntarily requested, or was involuntarily placed on, the leave, but whether the employee was in fact on such leave.

Finally, to qualify for FMLA leave it does not have to be shown that the individual was unable to work, but that the individual was unable to perform an essential function of the position. The FMLA does not require that the employer first attempt to accommodate the employee's health condition before placing the employee on FMLA leave. Although the 12 week period has ended, the employee has since indicated to the department that she is unable to work.



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uploaded 2005/11/22