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

COLLEEN M HUNGELMANN, Employee

MEDICAL COLLEGE OF WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07602999MW


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 ineligible for benefits beginning in week 13 of 2006, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed August 24, 2007
hungeco . usd : 115 : 1  VL 1023.10 VL 1039.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM OPINION

 


The employee worked more than 3.5 years as an animal lab technician in the biomedical resource center unit of the employer, a medical education and research facility.

During her employment, the employee developed physical and mental health conditions requiring treatment and medication. The employer granted her leave beyond that required by the Family and Medical Leave Act (FMLA) for treatment of these conditions.

During the last year of her employment, the employee requested and was granted permission to take medical leave on an intermittent basis. Because the employee's work attendance was unpredictable, she was reassigned from providing animal husbandry services for a particular animal room, to providing these and other services for a number of rooms as a substitute for absent workers.

In January of 2006, after the employee's attendance had not become more regular or predictable, the employer requested that she contact her medical providers to determine whether there was an accommodation which would permit her to perform the duties and responsibilities of her position, including resuming regular work hours, i.e., 6:00 a.m. to 2:30 p.m.

The employee had six medical providers at the time. The only accommodation any of them recommended was a later start time. Based on this recommendation, the employer, effective March 1, 2006, assigned the employee to work a part-time (10:00 a.m.-4:00 p.m.) schedule on a trial basis for one month, in order to assess the employee's ability to achieve regular attendance and to work back into a full-time schedule.

Even though part-time workers, i.e., those working less than 40 hours per week, are not eligible for benefits, the employer continued the employee's benefits through the month of March 2006 even though she was assigned to work only 30 hours per week that month.

It was the employer's policy that animal lab technicians who perform animal husbandry tasks, i.e., feeding, watering, and caring for animals, were only permitted to work between the hours of 6:30 a.m. and 4:00 p.m. when supervisory staff were present, in order to ensure quality of care for the animals and safety of the technicians.

Between March 1 and 15, 2006, the employee never arrived at work as early as 10:00 a.m. On March 15, 2006, the employee submitted her resignation.

The record shows the employee resigned because her request to work a 10 a.m.- 6:30 p.m. schedule had been denied even though another worker was permitted to work after 4:00 p.m.; and because she felt her medical conditions would have a better chance to improve if she were to take a break from work.

The worker who was permitted to work after 4:00 p.m. was not assigned to perform any animal husbandry tasks. Instead, he primarily did preparatory work for the next day's research activities. The employer did not have a need for more than one position to perform these tasks.

Generally, an employee who quits employment is ineligible for unemployment insurance until he or she meets the requalification requirements of Wis. Stat. § 108.04(7)(a). An exception to this quit disqualification is set forth in Wis. Stat. § 108.04(7)(c). Pursuant to this exception, an employee may quit employment without penalty if the employee had no reasonable alternative because she was medically unable to do her work. See, Glaser v. Dairy Queen, UI Hearing No. 02403272AP (LIRC Feb. 28, 2003); Nichols v. Wisconsin Bell, Inc., UI Hearing No. 06401151AP (LIRC Nov. 16, 2006).

Here, however, the competent evidence of record does not show that, at the time she quit, the employee was medically unable to do her work. In fact, the only accommodation recommended at that time by her medical providers was a later start time, which the employer provided to her. Moreover, at the time she quit, the employee essentially conceded that she was not medically unable to do her work, given her request for a full-time schedule, i.e., 10 a.m.- 6:30 p.m. Her belief that a break from work would assist her recovery is not supported by any competent medical evidence of record, and appears to represent a personal preference instead of a medical necessity. See, Nichols, supra. (quitting must be necessitated by worker's medical condition, not merely a preferable or beneficial option); Witchard v. LIRC et al., Case No. 96-CV-1188 (Wis. Cir. Ct. Dane Co., Jan. 12, 1997).

As a result, the medical necessity exception does not apply since the employee was not medically unable to do her work, and had a reasonable alternative to quitting, i.e., to continue to work the hours recommended by her medical providers and assigned by the employer.

The only other exception to the quit disqualification which could arguably apply here is set forth in Wis. Stat. § 108.04(7)(b), which provides for payment of benefits if an employee quits with "good cause attributable to the employing unit." The courts have defined "good cause attributable to an employer" to mean some act or omission that reasonably justifies the employee's decision to become unemployed rather than to continue working. It must involve some fault on the part of the employer and must be "real and substantial." Nottleson v. ILHR Department, 94 Wis. 2d 106, 120 (1980); Stetz v. DILHR, et al., Dane County Circuit Court, Case No. 136-215 (February 13, 1973).

The employee argues, at least by implication, that the employer's reduction of her hours to a part-time schedule provided good cause for her quit.

As a general rule, an employee who experiences a reduction in hours, effected by the employer for a valid business reason, is expected to remain employed and file a claim for partial benefits rather than quit. See, Lister v. North Central Wisconsin Rehab. Assoc., UI Hearing No. 98003262WU (LIRC Feb. 22, 1999); Vassar v. United Hospital System, Inc., UI Hearing No. 04604759RC (LIRC Sept. 3, 2004); De Celis v. Furniture & Mattress Express, UI Hearing No. 04202698EC (LIRC March 1, 2005).

Here, the employer initiated a reduction in the employee's hours in response to her medical providers' recommendation of a later start time, and the unavailability of supervisory staff after 4 p.m., both valid reasons. Although the employee contends that she should have been permitted to remain at work past 4 p.m., as another worker had been permitted, the record shows that the tasks assigned to this other worker did not implicate the safety concerns inherent in the animal husbandry tasks performed by the employee, and, unlike the employee's tasks, were appropriately performed later in the day because they primarily focused on the following day's research activities. The record also shows that the employer did not have a business need for two positions to perform the types of tasks assigned to this other worker.

cc:
Colleen M. Hunglemann


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2007/09/10