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

HARRY L BLUNT, Employee

MADISON METROPOLITAN SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06003919MD


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 has worked for about five and one-half years as a Custodial Worker I for the employer, a public school district. On August 10, 2006, he requested and the employer granted him leave under the Family Medical Leave Act ("FMLA") beginning August 15, 2006 (week 33). The purpose of the leave was for back surgery, a cervical spinal fusion, with a recommended return to work date of December 1, 2006 (week 48).

At hearing, the employee contended that the FMLA ended on October 27, 2006, when he became eligible for disablity pay. While he became eligible for disablity pay through the employer beginning on October 27, 2007, after a 55-day waiting period, that did not terminate or otherwise affect the FMLA leave. As of the hearing date on November 14, 2006 (week 46), the employee remained on leave.

The issue for decision is whether the employee is ineligible for unemployment benefits by reason of Wis. Stat. § 108.04(1)(b)3, which provides, in relevant part, as follows:

(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.

Ineligibility under the FMLA leave provision at Wis. Stat. § 108.04(1)(b)3. ends, pursuant to § 108.04(1)(b)3.a., if "the leave is exhausted" under the federal law or the state law. The greater entitlement is under the federal FMLA, which provides that the maximum entitlement for leave due to a personal medical condition is twelve weeks per year. 29 U.S.C. § 2612. Therefore the employee's leave entitlement was exhausted within the meaning of § 108.04(1)(b)3.a., at the end of week 44. Harmon v. Milwaukee Transport Services Inc., U I Dec Hearing No. 06604888MW (LIRC Jan. 25, 2007)

As of week 33 of 2006, the employee was on medical leave under the FMLA (P.L. 103-3). That leave was exhausted after 12 weeks. Therefore, he was ineligible under the above provision during those 12 weeks, week 33 through week 44 of 2006. However, the employee remained off work after this leave was exhausted.

The remaining issue to be decided is whether the continuing suspension of his employment by the employee beginning in week 45 of 2006 was because the employee was unable to do, or unavailable for, any suitable work available with the employer and if so, whether the employee was able to work and available for work in the labor market at the time the claim for unemployment benefits was initiated.

The statutes provide that a claimant is not eligible for benefits unless able to work and available for work. The Wisconsin Administrative Code implements the statutes and provides in relevant part that a claimant will not be considered able and available for work if his or her physical condition or uncontrollable circumstances limit him or her to less than 15 percent of the opportunities for suitable work in the labor market.

At the hearing, the employee testified that his doctor did not want him to work anywhere until the end of November and that he intended to abide by the doctor's orders. The commission accepts the employee's testimony that he was unable to do any suitable work in his labor market beginning in week 45 of 2006.

The commission therefore finds that in weeks 33 through 44 of 2006, the employee was on medical leave under the federal family and medical leave act of 1993 (P.L. 103-3) within the meaning of Wis. Stat. § 108.04(1)(b)3.

The commission further finds that beginning in week 45, the employee suspended his employment under Wis. Stat. § 108.04(1)(b)1, due to his medical condition, and that he was not otherwise able and available for suitable work.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, beginning in week 33 of 2006, the employee is ineligible for benefits until his leave is exhausted and he is again able and available for work.

Dated and mailed March 1, 2007
bluntha . urr : 178 : 1   AA 127  AA 240

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission has modified the decision to correctly reflect the provisions of the FMLA ineligibility provision. The employee's ineligibility during the entire period of his medical leave remains unchanged.

In his petition for commission review, the employee states that the decision inaccurately states that he did not appear for the hearing. The cover sheet is in error. The synopsis of the hearing record shows that the employee appeared and gave testimony at the hearing. His testimony is reflected in the commission's decision.

cc: Harry L. Blunt


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