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

LORA D FOSTER, Employee

TUFCO LTD PTRSHP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08000617MD


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 during seven months as a packing line worker for the employer, a cleaning products producer. Her last day of work was September 27, 2007 (week 39). She was absent September 28, 2007 which was her last scheduled work day after she gave notice to the employer that she was quitting.

Following her quitting, the employee was occupied for two weeks preparing to move to Tennessee with her children, in order to care for her mother who lived alone in a small apartment and who suffers from chronic pain and a deteriorating pulmonary condition. Her mother was hospitalized almost immediately upon her arrival, and then transferred to a nursing home until October 27, 2007, when she moved into the rental residence which the employee had secured. The employee provides daily assistance for cooking, cleaning, personal care, medication monitoring, and transportation for her mother.

The employee was available for full time work and began a work search as of November 11, 2007 (week 46). She has worked on only one day and therefore has not found it necessary to hire help while she is available to help her mother. She plans to hire a care worker when she is unavailable to help her mother due to finding work again.

The employee did not qualify for mandated family leave (FMLA) from the employer. It is the employer's policy however, to permit workers to take up to one month leave of absence for personal reasons. The employee did not request a leave prior to quitting. She filed a claim for unemployment benefits January 14, 2008 (week 3).

The issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

Wisconsin Stat. § 108.04(7)(c) provides as follows:

Paragraph (a) shall not apply if the department determines that the employee terminated his or her work but had no reasonable alternative because the employee was unable to do his or her work or because of the health of a member of his or her immediate family; but if the department determines that the employee is unable to work or unavailable for work, the employee is ineligible to receive benefits while such inability or unavailability continues.

It is the employee's burden to prove that the requirements of Wis. Stat. § 108.04(7)(c) have been met.

The commission has previously allowed benefits when an employee relocates to care for a sick or incapacitated relative. The commission has generally limited application of this section to those situations in which the employee proves that the family member requires medical care or assistance with the activities of daily living for an extended period of time due to a health condition, and the employee is the only one available to provide this care. See, Llambi v. Department of Corrections, UI Hearing No. 98002528MD (LIRC Sept. 16, 1998); Pellicier v. One Hour Martinizing, UI Hearing No. 94606141MW (LIRC Feb. 17, 1995); Carter v. Advance Products Corp., UI Hearing No. 00000918MD (LIRC May 10, 2000).

In Carter v. Advance Products Corp., U I Hearing No. 00000918MD (LIRC May 10, 2000), the commission allowed benefits when the claimant showed that she moved to Washington State to provide similar services to her mother to those provided by the employee. In that case, the doctor stated that the mother was unlikely to be able to live alone again due to her poor health and there was no other sibling available to provide the care.

The employee's mother can no longer live alone due to her pulmonary condition. No other family member is available. The employer confirmed that it could only accommodate a short leave of absence. The employee needed to provide long term care to her mother. The commission concludes that there were no reasonable alternatives available to the employee which would have permitted the employee to keep her job and care for her mother in another state.

The remaining issue is whether the employee is able and available for work. The employee testified that she is seeking full time work and when she finds such work work, a nurse will come in to help her mother. Therefore the employee is able and available for work as of the time she initiated her claim for benefits.

The commission therefore finds that in week 39 of 2007, the employee terminated work with the employer because the employee was unable to do that work and had no reasonable alternative, within the meaning of Wis. Stat. § 108.04(7)(c), but that the employee was able to work and available for work on the general labor market at the time the unemployment benefit claim was begun in week 3 of 2008.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 39 of 2007, if she is otherwise qualified.

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.

Dated and mailed may 15, 2008
fostelo . urr : 178 : 8  VL 1023.13

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

The commission does not reverse due to any differing assessment of witness credibility. The commission reaches a different legal conclusion when applying the law to the same facts found by the ALJ.

 


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