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

LEAH J STENSON, Employee

AURORA MEDICAL CENTER OF OSHKOSH INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06401523OS


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 eligible for benefits beginning in week 20 of 2006, if otherwise qualified.

Dated and mailed October 18, 2006
stensle . usd : 164 : 1   MC 605.09

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In the petition for commission review the employer argues, as it did at the hearing, that the employee did not provide medical documentation which could have allowed some of the absences to qualify for FMLA. The employer explains that occurrences related to FMLA do not count towards an employee's disciplinary actions and termination. The employer's argument fails. The employee's absences were for legitimate reasons and with notice to the employer. Although there may have been instances in which the employee could have qualified for FMLA leave, in which case the employer would not have held her absences against her, it was not established that her failure to obtain such leave was the result of any blameworthy conduct on her part. Moreover, the evidence indicates that the employee was discharged based upon the sheer number of her absences, which the employer understood were due to illness. The fact that the employee did not complete the process to request FMLA every time she may have been eligible does not convert otherwise legitimate absences into invalid ones. Under all the facts and circumstances, the commission agrees with the appeal tribunal that the employee's discharge was not for actions on her part which amounted to misconduct connected with her employment. Accordingly, the appeal tribunal decision is affirmed.

cc: Aurora Medical Center of Oshkosh Inc



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uploaded 2006/10/23