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

SANDRA K SCANLON, Employee

MOVIE GALLERY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06002343BO


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked almost six years as a store manager for the employer, a video rental business. Her last day of work was July 28, 2005. She filed a new initial claim for unemployment insurance benefits on April 12, 2006 (week 15 of 2006.

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

An employment relationship exists between an employer and an employee. Whoever takes the first action inconsistent with the maintenance of that relationship determines whether its end is deemed a quit or a discharge. If the employer takes the first step in a course of action that results in the end of the relationship, it is deemed a termination. If the employee takes the first step, it is deemed a voluntary quit. Another way of looking at the issue is who took the first action that was inconsistent with the continuation of the employment relationship. A key issue in determining whether an employee quit is his or her intent.

The employee went on an approved federal Family Medical Leave Act leave on June 25, 2005. The basis for the leave was that the employee was gravely depressed over the drowning of her thirteen year old son while on vacation with another family. The employee exhausted her FMLA leave on September 17, 2005. Her immediate supervisor telephoned the employee but was unable to reach her. The supervisor did not send the employee any correspondence. The employee also applied for and was found eligible for disability benefits through the employer; her eligibility for those benefits ended on October 10, 2005. On December 8, 2005, the employer sent the employee a letter informing her that her FMLA leave expired as of September 17, 2005 and that after that date, her store manager position was no longer protected under FMLA guidelines. The letter went on to tell her that she had to resume her position as store manager on December 19, 2005 or the employer would assume she had resigned and her employment would be terminated. The employee as on vacation in Florida with her children for two weeks and did not remember receiving the letter, although it was later found in an opened envelope in her "paperwork." The employee received paid medical leave for 2005 and was paid for vacation time on December 26, 2005. The employee did not contact the employer after going on the federal FMLA leave in 2005. She assumed she was still employed and on a medical leave until she learned in February 2006 that her store manager position had been filled. The employee was not yet released to work by her doctor in week 52 of 2005. She was released to work when she initiated her claim for benefits.

An employer medical leave policy, contained in the employee handbook and of which the employee was aware, stated that if an employee fails to report to work promptly at the end of the medical leave, the employer would assume that the employee had resigned. That policy also stated that an unpaid medical leave could not exceed twelve weeks in a twelve month period.

The employer contended the employee quit. That contention must be sustained.

The employer decided that it would no longer allow the employee to remain off work due to her medical condition when it sent her the December 8, 2006 letter setting a definite date she had to return to work. The employee failed to return and that was the first act inconsistent with the continuation of the employment relationship. The employee was thus the moving party in the separation from employment.

A quit of employment generally disqualifies one from immediate unemployment insurance eligibility, pursuant to Wis. Stat. § 108.04(7)(a). One exception to this disqualification is Wis. Stat. § 108.04(7)(c), the co-called "quit/medical necessity" exception. Pursuant to this exception, the general disqualification is inapplicable if an employee terminates his or her work but had no reasonable alternative because the employee was unable to do his or her work. When the employer ended the employee's medical leave, it required her to return to work with a full duty release from her doctor. However, the employee had not been released to return to work by her doctor. Since the employee had exhausted her leave but could not yet work, she had no reasonable alternative left but to quit her employment.

The commission therefore finds that in week 52 of 2005, the employee terminated work with the employer because she was unable to do that work and she did not have a reasonable alternative, within the meaning of Wis. Stat. § 108.04(7)(c), but that the employee was able to work and available for work at the time that the unemployment benefits claim was begun in week 15 of 2006.

DECISION

The decision of the administrative law judge is modified, and as modified, is affirmed. Accordingly, the employee is eligible for benefits as of week 15 of 2006, if otherwise qualified.

Dated and mailed October 27, 2006
scanlsa . urr : 178 : 1  VL 1007.05  VL 1023.15

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The department has petitioned for commission review of the appeal tribunal decision that the employee was terminated because she was unable to do her work for the employer. The department argues that the employee quit. The commission agrees. However, the commission finds sufficient evidence in the record to also conclude that the quitting was because she was unable to do her work for the employer. Consequently it has modified the decision accordingly.

 

NOTE: If the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employee based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

 

cc:
Movie Gallery (Mount Horeb, Wisconsin)
Daniel J. Larocque


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