ROBERT M HARMON, Employee
MILWAUKEE TRANSPORT SERVICES INC., 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 makes the following:
The employee has worked approximately fifteen years, most recently as a driver, for the employer, a public mass transit organization. His last day of work, prior to the period in question, was May 19, 2006, and he began a medical leave of absence on May 22, 2006 (week 21).
In early May, 2006, the employee had contacted the employer's FMLA administrator and indicated that he would be undergoing shoulder surgery towards the end of that month and that he wanted to make the necessary arrangements with the employer to allow for that extended absence. He was told to apply for leave under the Family Medical Leave Act, which he did by submitting his application for that leave on May 8, 2006. On May 9, 2006, he provided supporting documents for the leave from his physician. On May 26, 2006, the employer's FMLA administrator checked the "approved" box on the employee's application for leave and signed off on it.
On May 22, 2006, the employee underwent surgery for the complete replacement of his right shoulder. He was released from the hospital on May 23, 2006, with physician's restrictions which directed him not to work. On May 30, 2006, the employee visited his physician, had the staples removed from his shoulder, and was told that his recovery was progressing well. On June 1, 2006, the employee's physician completed a "Recommendations To Return To Work" which indicated that it was the physician's opinion that the employee could return to work on June 5, 2006 (the start of week 23 of 2006), without restriction.
The employee provided the employer with this release from his physician and indicated that he wanted to return to work, but the employer told him this recovery period appeared too short and that he would not be allowed to return to work until he had been examined by an employer-appointed physician. As the employer required, the employee met with the employer-appointed physician on June 2, 2006. That physician concluded that the employee was not sufficiently recovered to return to work, and he recommended that he see an orthopedist in late June, 2006. That physician informed the employer of his conclusions on or about June 8, 2006. The employer then purported to extend the employee's leave in accordance with the opinion expressed by the physician who it had required the employee to see. On June 28, 2006, the employee was examined by the employer-appointed orthopedist, who recommended that he be allowed to return to work on July 17, 2006. The employer further "extended" the employee's leave until July 16, 2006, and the employee was allowed to return to work on July 17, 2006.
The issue for decision is whether during the weeks at issue the employee was ineligible for benefits pursuant to Wis. Stat. § 108.04(1)(b)3., which provides:
108.04 Eligibility for benefits. (1) General disqualifications and limitations.
. . .
(b) An employee is ineligible for benefits:
. . .
3. While the employee is on family or medical leave under the federal family and medical leave act of 1993 (P.L. 103-3) or s. 103.10, until whichever of the following occurs first:a. The leave is exhausted.
b. The employer is required to reinstate the employee under 5 USC 6384 or s. 103.10(8).
c. The employee returns to work.
In the past, the commission has confronted cases in which there has been a question as to whether a claimant should be considered to be "on family or medical leave" within the meaning of this provision, where it was asserted that the claimant did not want to be on such leave at all but had been placed on it unilaterally by the employer. See, e.g., Aikens v. Dept. of Reg. & Licensing (LIRC, May 30, 2001) (employee signed request for FMLA leave only at employer's insistence; did not want to be on leave at all); Wojtalewicz v. Copps Corp. (LIRC, Sep. 14, 2001) (employee on leave voluntarily for back surgery signed request for FMLA only at behest of employer, had contractual leave entitlement available and did not want his leave to be counted as FMLA leave); Βlасklеdgе v. Marshfield Clinic (LIRC, Jun. 27, 2002) (employee did not request leave or sign any leave request, put on leave unilaterally by employer); Sullivan v. County of Fond du Lac (LIRC, May 6, 2004) (employee signed request for FMLA leave only at employer's insistence; did not want to be on leave at all but wanted to keep working, albeit on "light duty" status); Durante v. Gleason Reel Corp. (LIRC, Apr. 15, 2004) (employee unilaterally put on FMLA leave by employer); Orr v. Wisconsin Veterans Home (LIRC, Nov. 10, 2005) (employee unilaterally put on FMLA leave by employer). In some of these cases the commission concluded that the employee was on FMLA leave within the meaning of § 108.04(1)(b)3. while in others it concluded that the employee was not on such leave within the meaning of that provision. In these cases, the analytical focus has often been on whether it made a difference if the leave was not "voluntary".
In several other cases, the commission has confronted situations in which it was undisputed that employee had initially been on FMLA leave voluntarily for some period of time, and the issue has been whether they continued to be "on" such leave after they sought to return and resume work and the employer declined to allow them to do so and unilaterally "extended" their FMLA leave. See, e.g., Meltesen v. Dept. of Health & Family Services (LIRC, Jun. 29, 2004) (employee requested 2 weeks' FMLA leave, employer unilaterally extended return date to several weeks later); Ferdon v. JMS Converters (LIRC, Jul. 8, 2005) (employer would not allow employee to return to work from FMLA leave until she was "100%"); Matabele v. County of Milwaukee (LIRC, May 12, 2006) (employer would not allow employee to return to work from FMLA leave because of continuing restrictions). In these decisions, the commission has taken somewhat differing approaches and has arrived at different results.
As noted above, the relevant statute provides that a claimant "is ineligible for benefits . . . [w]hile the employee is on family or medical leave . . . until whichever of the following occurs first" (emphasis added), following which there is a listing (in § 108.04(1)(b)3.a.-c.) of three conditions or occurrences. The commission concludes that the most reasonable interpretation of this language is that an employee who starts a period of family or medical leave and who is therefore ineligible for UI benefits, remains ineligible thereafter unless and until one of the three things described in § 108.04(1)(b)3.a.-c. occurs to change their status. Thus, in cases in which it is undisputed that a claimant has been "on" FMLA leave (and thus ineligible) for a time, the question of whether they continue to be ineligible after that point does not turn on whether their continuation on such leave as of that point is "voluntary" or is required by their condition. Rather, the language of the statute requires the conclusion that the question depends entirely on whether one of the three conditions or occurrences described in § 108.04(1)(b)3.a.-c. is met.
It is not in dispute that the employee here was "on family or medical leave under the federal family and medical leave act of 1993 (P.L. 103-3) or s. 103.10" at the beginning of his period of absence from work. He specifically applied for leave under the Family and Medical Leave Act when he initially took off work to have his shoulder surgery, and he was granted leave on that basis. Because the employee was thus "on family or medical leave under the federal family and medical leave act of 1993 (P.L. 103-3) or s. 103.10" within the meaning of Wis. Stat. § 108.04(1)(b)3., at least during weeks 21 and 22 of 2006, he continued by operation of § 108.04(1)(b)3. to be ineligible thereafter unless and until one of the conditions described in § 108.04(1)(b)3.a.-c. was satisfied. For this reason, the commission turns to the question of whether any of those conditions were met.
As noted above, the ineligibility created by § 108.04(1)(b)3. ends, pursuant to § 108.04(1)(b)3.a., if "the leave is exhausted." The claimant's entitlement under Wisconsin's Family and Medical Leave Act would have been to "Medical Leave", provided for in § 103.10(4). The maximum entitlement to such leave is two weeks per year. Id. The claimant's potential entitlement to leave under the Wisconsin Family and Medical Leave Act was therefore necessarily "exhausted," as a matter of law, by the claimant's two weeks of leave during weeks 21 and 22 of 2006. However, the relevant UI Act provision in § 108.04(1)(b)3. speaks of an employee being on family or medical leave under the federal law or the state law. The subsequent reference in § 108.04(1)(b)3. to "the leave" being exhausted, must be understood to be to this initial reference to both federal and Wisconsin FMLA law in the disjunctive. Under the federal FMLA, the maximum entitlement for leave due to a personal medical condition is twelve weeks per year. 29 U.S.C. § 2612. Therefore the claimant here could have had a remaining entitlement under the federal FMLA. It thus cannot be said that the claimant's "leave" entitlement was "exhausted" within the meaning of § 108.04(1)(b)3.a. Therefore, this condition was not met.
The ineligibility created by § 108.04(1)(b)3. also ends, pursuant to § 108.04(1)(b)3.c., if "[t]he employee returns to work." Here, although the claimant wanted to return to work, the fact is that he did not. The "employee returns to work" must, the commission concludes, be taken literally. If this subsection were construed to encompass situations in which an employee sought to return to work but was not permitted to by the employer and thus did not in fact start working again, that construction would tend to make § 108.04(1)(b)3.b. surplusage (that condition appears intended to cover situations in which an employee seeks to return to work, and is not permitted to by an employer, such that the question of the employer's legal obligation to do so becomes important). Because the employee did not in fact "return to work" as of week 23, the condition described in § 108.04(1)(b)3.c. was not met at that time.
This leaves the question of whether the condition described in § 108.04(1)(b)3.b. was met in this case. This condition is, that the employer "is required to reinstate the employee under 5 USC 6384 or s. 103.10(8)." It is clear that the employer here was not required to reinstate the employee "under 5 USC 6384" because that provision of the U.S. Code is part of the section of that Code providing for a family and medical leave program for federal employees. (1) It thus could not apply to the claimant herein, who was not a federal employee. Therefore, the condition described in § 108.04(1)(b)3.b. can only be found to be met if the employer was "required to reinstate the employee under . . . s. 103.10(8)."
Wisconsin Stat. § 103.10(8) provides as follows.
103.10 Family or medical leave.
. . .
(8) Position upon return from leave. (a) Subject to par. (c), when an employee returns from family leave or medical leave, his or her employer shall immediately place the employee in an employment position as follows:1. If the employment position which the employee held immediately before the family leave or medical leave began is vacant when the employee returns, in that position.
2. If the employment position which the employee held immediately before the family leave or medical leave began is not vacant when the employee returns, in an equivalent employment position having equivalent compensation, benefits, working shift, hours of employment and other terms and conditions of employment.(b) No employer may, because an employee received family leave or medical leave, reduce or deny an employment benefit which accrued to the employee before his or her leave began or, consistent with sub. (9), accrued after his or her leave began.
(c) Notwithstanding par. (a), if an employee on a medical or family leave wishes to return to work before the end of the leave as scheduled, the employer shall place the employee in an employment position of the type described in par. (a) 1. or 2. within a reasonable time not exceeding the duration of the leave as scheduled.
The question is whether (and, if so, when) the employer herein was "required to reinstate the employee under" this provision.
When a family or medical leave as originally requested by the employee and approved by the employer is scheduled for a definite term, it is clear under the foregoing language that if an employee on such a leave seeks to return to work before that defined period of scheduled leave is finished, the situation is governed by subsection (8)(c). The focus of that subsection on leaves which have been initially requested and approved for a fixed and definite period can be seen by the subsection's repeated use of the term, "the leave as scheduled."
In this case, however, the leave as originally requested by the employee and approved by the employer was for an indefinite term, in that a specific return date was neither sought nor definitely scheduled. The "Application for Leave of Absence" completed by the employee stated,
I hereby request a Leave-of-Absence to begin on (mo./day/yr.) 5/22/06 and
end on or about (mo./day/yr.) Unknown (3 weeks) 6/12 .
Although there was a parenthetical indication "3 weeks" and a date of "6/12" which was 3 weeks after May 22, the fact remains that the first indication made in the space provided for the leave applicant to describe the intended ending date of their leave, was "Unknown." This appears to have been the employer's understanding as well, as evidenced by the employer's "Company Response To Employee Request For Family or Medical Leave," issued to the employee on May 11 in response to his application, which stated in relevant part,
"[o]n 5/07/06 you notified us of your need to take family/medical leave . . . you notified us that you need this leave beginning on 5/22/06 and that you expect leave to continue until on or about Undetermined."
(emphasis added). Finally, the employer's eventual approval of the employee's application for this leave was effected on May 26 by the employer's representative checking a box next to the word "Approved." No additions or changes were made to the application form relative to the anticipated (or approved) ending date of the leave. Given these facts, the commission views this as having been a request for, and approval of, a medical leave of indefinite duration.
Because § 103.10(8)(c) applies only to situations in which the leave as originally requested by the employee and approved by the employer was scheduled for a definite term, the commission looks here instead to § 103.10(8)(a), which applies when an employee "returns from" family leave or medical leave. The commission interprets this subsection to mean that when the employee who is on a family or medical leave requested and approved for an indefinite term, presents himself to the employer and indicates that he wishes to return to work, that employee has "return[ed] from family leave or medical leave" within the meaning of § 103.10(8)(a). Under that provision, "when an employee returns from family leave or medical leave, his or her employer shall immediately place the employee in an employment position" as more particularly described there. Thus, when the employee sought to resume work beginning with week 23 of 2006, the employer was "required to reinstate the employee under . . . s. 103.10(8)" within the meaning of Wis. Stat. 108.04(1)(b)3.b., and the ineligibility which existed by virtue of the employee having been "on" FMLA leave in weeks 21 and 22 therefore ended at that point.
The commission therefore finds that in weeks 21 and 22 of 2006, the employee was "on family or medical leave under the federal family and medical leave act of 1993 (P.L. 103-3) or s. 103.10" within the meaning of Wis. Stat. § 108.04(1)(b)3.
The commission further finds that as of week 23 of 2006 the employer was "required to reinstate the employee under . . . s.103.10(8)" within the meaning of Wis. Stat. § 108.04(1)(b)3.b., and that for that reason, the employee was no longer ineligible by reason of being "on family or medical leave under the federal family and medical leave act of 1993 (P.L. 103-3) or s. 103.10" within the meaning of Wis. Stat. § 108.04(1)(b)3., in weeks 23 through 28 of 2006.
The Findings of Fact and Conclusions of Law of the administrative law judge are modified to conform with the foregoing and, as modified, the decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits in weeks 21 and 22 of 2006, and eligible for benefits in weeks 23 through 28 of 2006, if otherwise qualified.
Dated and mailed January 25, 2007
harmonr . urr : 110 : 1 AA 127
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
NOTE: The commission had no disagreement with the material findings of fact made by the administrative law judge. It has substituted its own decision in order to set out the different legal analysis which led it to the same result as that reached by the administrative law judge.
cc: Attorney Steven A. Burk
[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]