340 Notice to the employer

The Respondent did not violate the Wisconsin Family and Medical Leave Act in terminating the Complainant’s employment for excessive absenteeism where the Complainant did not provide the Respondent with sufficient notice that her November 5, 2010 absence was related to a serious medical condition. The Complainant admittedly understood that she could take medical leave under the Wisconsin Family and Medical Leave Act for a serious medical condition, but did not (i) specifically request family and medical leave for her absence on November 5, 2010 when she called in on that day, (ii) did not provide the Respondent with any information as to why she had missed work on November 5, 2010, beyond a written excuse for her absence from an urgent care physician that noted she was off work due to illness, (iii) did not indicate that she intended to take family and medical leave for her November 5, 2010, absence on an absence form that the Respondent issued to her that specifically asked her whether she was applying for family and medical leave, and (iv) only requested family and medical leave for her November 5, 2010 absence after receiving a final warning for exceeding the 48 hours of sick time in a calendar year allowed by the Respondent – some six weeks later. Schlesner v. US Bank (ALJ decision, ERD Case# CR201104426, 5/30/13) (unavailable online).

An employee's request for leave under the Wisconsin Family and Medical Leave Act need only be reasonably calculated to advise the employer that the employee is requesting medical leave under the Act and the reason for the request. The burden is on the employee to demonstrate that, at the time medical leave was requested, the employee (1) has a serious health condition, (2) that renders the employee unable to perform the employee's duties during a specific time period, and (3) that a leave during that time is medically necessary. If the employer desires more information, it can request certification under sec. 103.10(7), Stats. Essentially, the (2) disapprove the leave, or (3) request more information through the certification process in sec. 103.10(7), Stats. Sieger v. Wis. Pers. Comm'n, 181 Wis. 2d 845, 512 N.W.2d 220 (Ct. App. 1994).

Several letters to the employer from the Complainant's psychologist were not adequate to satisfy the employer's request that the employee provide certification from a health care provider explaining the extent to which the employee was unable to perform his or her employment duties under the Wisconsin Family and Medical Leave Act. The letters did not address specifically the employee's ability to perform his employment duties and the general finding of a 50 percent disability from the Department of Veteran Affairs failed to specifically address the Complainant's ability to perform his employment duties. Therefore, the letters did not comply with the employer's request for medical certification. Randolph v. DILHR (Ct. App., Dist. II, unpublished opinion, 05/13/92).

The Wisconsin Family and Medical Leave Act does not require that the employee utter magic words or make a formal application in order to invoke the protections of the Act. In this case, a telephone conversation between the Complainant’s attorney and the employer gave the employer reasonable notice of a serious health condition. Jicha v. DILHR, 164 Wis. 2d 94, 473 N.W.2d 578 (Ct. App. 1991), aff’d, 169 Wis. 2d 284, 485 N.W.2d 256 (1992).

The Complainant's failure to provide medical excuses for her absences did not render her without protection under the Family and Medical Leave Act where the employer never informed her by personal notice or posting information in the workplace as required by the Act that such certification was necessary for protection under the Act. Haas v. DILHR, 166 Wis. 2d 288, 479 N.W.2d 229 (Ct. App. 1991).

The Complainant was lawfully terminated where she failed to provide medical certification concerning her condition to the Respondent within a reasonable time. Wysocki v. DILHR (Marinette Co. Cir. Ct., 03/11/91).