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

BARBARA J BEYER, Employee

MIRRO / FOLEY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00402278MN

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 in week 27 through 35 of 2000.

Dated and mailed October 5, 2000
beyerba.usd : 132 : 6  AA 240  AA 250

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employee has petitioned for commission review of the adverse appeal tribunal decision which found that she was ineligible for benefits in weeks 27 through 35 of 2000 because she was on a medical leave under the Federal Family and Medical Leave Act. The employee states in her petition, as she did at the hearing, that the majority of her work did not involve driving a forklift. However, as noted by the administrative law judge, a part of her job did involve driving a forklift. The employee could not perform her normal duties with the employer. The employer testified that it could not accommodate every medical condition of every worker. The employer testified it did not have other duties for her. The statute does not permit benefit eligibility if the employee is able to perform 15 percent of her job duties. That percentage applies to the employee's ability to perform work on the general labor market. That issue however became irrelevant when it was determined that the employee was on a medical leave under the Federal Family Medical Leave Act. Wisconsin Statute § 108.04(1)(b)3. specifically provides that an employee who is on such leave is not eligible for unemployment insurance benefits. This is true whether the employee is or is not able to work in 15 percent of suitable jobs on the employee's labor market. For these reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

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