330 Right to substitute leave

The Respondent interfered with the Complainant's rights under the WFMLA when its staff completed and signed a form purporting to request WFMLA leave, and to authorize the release of information in support of that request, "for" the Complainant without her knowledge or consent, and when the Respondent designated two weeks of involuntary medical leave as WFMLA leave in the absence of any request by the Complainant to take such leave or her agreement to such designation. Barnes v. DOC (ALJ decision, ERD Case #CR201600129, 12/29/16).

The Complainant in this case established that she had “accrued” paid sick leave for which she could substitute leave under the Wisconsin Family and Medical Leave Act. Her sick leave benefits arose from a collective bargaining agreement between her employer and her union. The amount of paid sick leave available to her was “specified and quantifiable.” Under the terms of the collective bargaining agreement, the Complainant was eligible for 12 weeks of sick leave at full pay and 13 weeks of sick leave at half pay. In addition, her sick leave benefits had a “draw-down feature.” (For example, she would have depleted her sick leave benefit entirely if she had been absent for 25 weeks during the fall of 2001 and into the winter of 2002 due to illness. Her sick leave benefits would have renewed only if she had worked a period of 13 consecutive weeks after taking the sick leave). Finally, the Complainant’s sick leave benefits accumulated over time because (1) the amount of leave available to her renewed to the maximum if she worked for 13 consecutive weeks after taking sick leave, and (2) the maximum amount of sick leave available to her increased based on her longevity with the Respondent. Zeigle v. Verizon North (ALJ Decision, 03/14/03).

Once an employee chooses to substitute one type of leave for WFMLA leave under sec. DWD 225.03(1), Wis. Stats., the new leave replaces the WFMLA leave. As a result, only one leave is being used by the employee – the substituted leave. Therefore, only one leave can be reduced. In this case, the Complainant only wanted to take compensatory time off (“CTO”) leave. He never requested WFMLA leave. He never checked the WFMLA leave box on the leave request form, and he never discussed WFMLA leave with his employer. He substituted WFMLA leave with CTO leave. The Respondent’s policy treating the Complainant’s leave as both CTO leave and WFMLA leave (regardless of whether the Complainant wanted to or not) is contrary to the Wisconsin Administrative Code. “Substitution” means replacement of one thing by another. “Deem,” as used in the administrative rules, means to cause one thing to be treated as if it were something else. Therefore, the Respondent cannot deem the Complainant’s leave to be WFMLA leave by utilizing sec. DWD 225.03(1), Wis. Adm. Code. Only substitution applies under that section. City of Madison Water Util. v. DWD (Dane Co. Cir. Ct., 10/10/02).

The Complainants had accrued sick leave available to them for substitution under sec. 103.10(5)(b), Stats., where their employer’s sick leave benefit met the following criteria: (1) The sick leave benefit arose from the parties’ collective bargaining agreement, (2) the amount of paid sick leave available to a given employee is specified and quantifiable (for example, if an employee has worked for the Respondent for six years, he has ten weeks of sick leave available in a twelve-month period.), (3) the benefit has a “draw-down” feature, by which the amount of available leave decreases as the employee uses it, (4) although there is no leave “carryover” feature, the benefit “accumulates” over time because (a) the amount of leave available renews to the maximum every twelve months, and (b) the maximum amount of leave available increases with an employee’s longevity. The fact that an employee must be sick for several days before receiving paid sick leave benefits does not render the benefit “indefinite” or “incalculable.” Once the waiting period requirement is met, the entitlement is clear and the employer may not, in its discretion, deny a request for payment of the benefit. Further, the employer must allow substitution commencing on the first day of family leave. The employer’s sick leave benefit accrues irrespective of the waiting period, and the waiting period requirement is a non-transferring condition when sick leave is substituted for family leave. Kraft Foods v. DWD, 2001 WI App 69, 242 Wis. 2d 378, 625 N.W.2d 658.

The Wisconsin Family and Medical Leave Act gives an employee the unambiguous right to substitute unpaid medical leave under the Act for paid sick leave offered by the employer. Milw. Transport Services v. DWD, 2001 WI App 40, 241 Wis.2d 336, 624 N.W.2d 895.

Under the terms of a collective bargaining agreement, the Complainant was entitled to ten weeks of paid sick leave. The Complainant’s sick leave entitlement was calculable, was available for his use, and, therefore, was an accrued benefit. The Respondent contended that the program was a non-accrued, contingent benefit, because it was contingent upon illness or incapacity. However, the term “contingent” means “not certain to occur” or “conditional.” It refers to something over which the employer has discretion to grant, which is clearly not the situation in the present case. The sick leave in this case was accrued leave and, therefore, substitutable under the FMLA. Kraft Foods v. State of Wis. (Dane Co. Cir. Ct., 02/04/99).

To prove a violation of sec. 103.10(5)(b), Wis. Stats., the Complainant must establish that (1) at the time the employee requested leave, the employee was covered by the Wisconsin Family and Medical Leave Act; (2) the employee asked to substitute other leave for family leave; (3) the employer provided leave that could be substituted; (4) the employee had accrued the leave to be substituted; and (5) the employer denied the substitution request. Miller Brewing Co. v. DILHR, 210 Wis. 2d 26, 563 N.W.2d 460 (1997).

A claim under the Wisconsin Family and Medical Leave Act challenging an employer’s refusal to allow an employee to substitute her paid sick leave for the six weeks of unpaid family leave provided for by sec. 103.10(5)(b), Stats., is not preempted by sec. 301 of the federal Labor Management Relations Act. Miller Brewing Co. v. DILHR, 210 Wis. 2d 26, 563 N.W.2d 460 (1997).

Section 103.10(5)(b), Wis. Stats., permits an employee to pick and choose the dates on which to substitute paid days for unpaid leave days. Barry-Chamberlain v. DILHR (Dane Co. Cir. Ct., 06/30/94).

Extended sick leave which does not accumulate from year to year is still "accumulated leave" for purposes of the substitution of leave provision in the Wisconsin Family and Medical Leave Act. Wis. Gas Co. v. DILHR (Milwaukee Co. Cir. Ct., 01/05/94).

An employer must provide leave that is definite and quantifiable in order for such leave to be available for substitution under the Wisconsin Family and Medical Leave Act. Richland Sch. Dist. v. DILHR, 174 Wis. 2d 878, 498 N.W.2d 826 (1993).

The substitution clause, sec. 103.10(5)(b), Stats., permits an employee to substitute paid leave accumulated under a collective bargaining agreement for family and medical leave when the employee does not meet all the conditions for leave eligibility set forth in the collective bargaining agreement. Only those types of leave which an employment contract allows an employee to accumulate over time are available for substitution. Richland Sch. Dist. v. DILHR, 174 Wis. 2d 878, 498 N.W.2d 826 (1993).

The plain reading of sec. 103.10(5)(b), Stats., permits an employee to substitute any type of leave provided by the employer for family leave or medical leave. Clintonville v. DILHR (Waupaca Co. Cir. Ct., 01/14/91); City of Milwaukee v. DILHR (Pohlmann) (Milwaukee Co. Cir. Ct., 11/13/91); Waukesha Co. Dep't of Human Resources v. DILHR (Caldwell) (Waukesha Co. Cir. Ct., 06/05/91).

If the leave provided by the employer does not have as liberal a substitution provision as found in sec. 103.10(5), Stats., then the leave is more restrictive than is available under sec. 103.10(3)(b)1, Stats. Lawless v. UW-Madison (Wis. Pers. Comm'n, 06/01/90).

The Personnel Commission granted a rehearing on request from a person aggrieved who was not a party in the original hearing because it concluded that its implicit conclusion that the leave granted by the Respondent was not more restrictive than the leave available under sec. 103.10(3)(b), Stats., constituted a material error of law. Lawless v. UW-Madison (Wis. Pers. Comm'n, 06/01/90).