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

PATRICIA M SAVAGE, Employee

FLEET & FARM SUPPLY CO
OF WEST BEND INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09404072AP


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 for about two years for a retail business. Her last day of work was in late June, 2009. In order to care for her mother who was undergoing a procedure for the removal of 20 of her teeth, the employee requested the employer approve her taking vacation leave from June 26 through June 29, 2009. The employee approved the employee's request for that vacation leave.

On or about June 29, 2009, the employee asked the employer's manager for approval to take additional time off from her previously scheduled work on July 1 and through the weekend of July 4 - 5, 2009. The employee advised the manager that she needed additional time off work to look after her mother, whose teeth been extracted on June 29. The manager replied that he was willing to approve her absences on July 1 and July 5, but not July 4.

On July 2, 2009 (week 27), the employee phoned the employer to speak to the employer manager about her need for additional time off scheduled work. The manager was not available when the employee called, so she then spoke to the employer's assistant manager and asked him for approval to be absent from her scheduled shifts on July 4, in order to care for her mother. The assistant manager advised her that he could not "overrule" the employer's manager. The employee then advised the employer's assistant manager, "Well, if you can't give me additional time off I have to resign." The employee did not again contact the employer's manager or attempt to report for her scheduled work with the employer. On July 19, 2009, she delivered to the employer a letter confirming her resignation.

Because of her need to stay home and provide care for her mother and for her disabled father, as of week 27 and through at least mid-November 2009 (week 46), the employee was unavailable for any work in her labor market area. On September 11, 2009 (week 37), the employee initiated a claim for unemployment benefits beginning in that week.

The issue to be decided is whether the employee's reason for quitting falls within any exception permitting the immediate payment of benefits.

The only exception that would arguably apply to the employee's reason for quitting is found at Wis. Stat. § 108.04(7)(c), which permits a worker to terminate his or her employment in order to care for an immediate family member with a verified illness or disability, provided that the worker establishes that the period of care he/she needs to provide the family member is longer than what the employer is willing to grant the worker as a leave of absence. For this exception to apply, it is essential that prior to quitting the worker made reasonable, good faith efforts to explore with the employer the option of a leave of absence.

The commission concludes that in this case, the employee made such efforts. The employee requested an additional leave to include July 4, 2009 on two occasions to care for her mother who experienced medical complications. The employer denied her the additional day of leave. The employer was unwilling to grant additional leave so that the employee could continue caring for her sick mother which prompted the employee to quit. Therefore, the employee's reason for quitting falls within the exception at Wis. Stat. § 108.04(7)(c).

The remaining issue is whether the employee was able and available for work.

The employee testified that she was not able to work until mid-November (week 46) due to the demands of caring for her parents, although she did look for work. Thereafter the employee was available for work from 8:00 a.m. to 2:00 p.m. during the week and on weekends.

Wisconsin Administrative Code DWD § 128.01(4)(a)2. provides in relevant part:

For purposes of this subdivision, a claimant whose availability is restricted by an immediate family member's medical or health condition or other infirmity requiring essential care that is uniquely and actually provided by the claimant is not considered to have withdrawn from the labor market, provided that the claimant remains available for full-time suitable work, regardless of the shift or hours.

Despite the employee's restrictions on the hours she can work, she is available for full time work beginning in mid-November. Therefore she is eligible for benefits beginning in week 47 of 2009.

The commission therefore finds that in week 27 of 2009, the employee terminated her work with the employer because the employee was unable to do that work due to the health of a family member, within the meaning of Wis. Stat. § 108.04(7)(c), but that as of week 47 of 2009, the employee was able and available for work within the meaning of that section.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 47 of 2009, if otherwise qualified.

Dated and mailed May 21, 2010
savagpa . urr : 178 : 1 VL 1023.13

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss credibility with the ALJ prior to reversing. The commission did not base its decision on any differing assessment of witness credibility. The employee requested and was denied leave on July 4, 2009, to care for her sick mother. The commission determines as a matter of law that the employer's failure to extend the employee's leave under these circumstances falls within the meaning of the exception at Wis. Stat. § 108.04(7)(c).


Editor's Note: This decision has been edited to correct a typographical error in a citation.


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


uploaded 2010/06/11