TRACE C MATABELE, Employee

COUNTY OF MILWAUKEE, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for unemployment benefits in weeks 41 through 48 of 2005.

Dated and mailed May 12, 2006
matabtr . usd : 178 : 2   AA 127

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

In her petition for commission review, the employee argues that she was able and available to work on first or second shift beginning October 10, 2005, but the employer prevented her from doing so. She states that she was released to work without any restrictions after October 27, 2005. Therefore, the employer had no right to extend her FMLA leave beyond that point. Finally, she maintains that positions on first and second shift were available throughout this involuntary leave which the employer elected not to place her in.

The employee's assertion that she did not have any medical restrictions after October 27, 2005 is not supported by the record. Exhibit 1 indicates that the employee's shift restrictions are permanent and that she can work third shift only for mandatory overtime. Moreover, the employee's testimony does not indicate that she was able to return to full time, third shift work at any time during her FMLA leave. The employer is not required under FMLA to accommodate an employee's restrictions when she has a serious health condition. To qualify for FMLA leave, it does not have to be shown that the individual was unable to work, but only 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. Orr v. Wisconsin Veterans Home, UI Dec. Hearing No. 05402161AP (LIRC, Nov. 10, 2005).

In this case, the employee's job was third shift and she was unable to do it during or after her leave. She was only able to return to work when the employer found a new job for her on a shift that she could work. For business reasons, which the commission will not second guess, that did not occur until November 27, 2005. In the meantime, the employee's job was protected by her FMLA leave.

The commission also disagrees with the employee's reasoning that the employer cannot place an employee on FMLA leave. The language of Wis. Stat. § 108.04(1)(b)3., does not indicate that the employee need be the moving party in seeking FMLA leave or that her request need be voluntary. Sullivan v. County Of Fond Du Lac, UI Dec Hearing No. 03006103BD (LIRC May 6, 2004). The employer extended the employee's leave until it was able to provide a second shift position that she could perform despite her permanent medical restrictions. During that leave, the employee is ineligible for benefits.

cc:
William Mollenhauer
Louis Elder

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uploaded 2006/05/24