380 Cases

The Respondent interfered with, restrained and/or denied the Complainant’s exercise of a right protected under the Wisconsin Family and Medical Leave Act when it suspended him without pay for unexcused absences under circumstances that should have reasonably been understood to either (i) be covered by a certification provided for intermittent leave for back pain and headaches, or (ii) have required the Respondent to notify the Complainant that he needed to clarify his intentions regarding his previous certification, or to provide additional certification for his absences. Peetz v. State of Wis. (ALJ Decision, ERD Case # CR201303404 11/4/14) (unavailable online).

The Respondent’s request that the Complainant sign an Authorization for Release of medical records so that the Complainant’s doctor could respond to questions regarding the Complainant’s documented serious medical condition, as documented by her doctor in the Family and Medical Leave Certification of Health Care Provider for an Employee’s Serious Health Condition (OCD), and whether said medical condition compromised the Complainant’s ability to perform her job duties, did not constitute interference with or denial of her rights under the Wisconsin Family and Medical Leave Act. Although the Respondent referenced the Complainant’s FML request in making its request, it was intended to assist the Respondent in determining whether to proceed with disciplinary action against the Complainant. Willis v. DOR (ALJ Decision, 01/25/13) (unavailable online).

The Respondent did not interfere with, restrain or deny the Complainant’s right to family medical leave when it denied the Complainant’s request to take leave so that he could accompany his wife to her eye doctor appointment where his wife never went back for a follow-up appointment, or received any other continuing care for her eye condition. With no continuing care, the Complainant’s wife’s health condition did not meet the definition of a serious health condition protected by the Wisconsin Family and Medical Leave Act. Sullivan v. City of Milwaukee (ALJ Decision, 01/25/13) (unavailable online).

The FMLA provides that an employer may require an employee, in advance of taking leave, to have in escrow with the employer an amount equal to health insurance premiums for an eight-week period. If the employee resigns within 30 days of the completion of the leave, the employer may deduct the amount of the premiums for the leave from the escrowed amount and return any remaining escrowed amount to the employee. Section 103.10(9)(c)4., Stats., states that an employer “may” deduct from an escrow account any premium paid by the employer while the employee was on FMLA leave if the employee does not return to work. Nothing in the statute states that an employer waives its right to collect the debt if it fails to escrow the employee’s funds. Port Edwards Sch. Dist. v. Reissmann (Ct. App., Dist. IV, unpublished opinion, 03/20/08).

The idea behind the medical certification process is for medical determinations to be made by health care providers, not laypersons. In this case, there was probable cause to believe that the Respondent had rejected two medical certifications provided by the Complainant’s physician based, at least in part, on the unsupported lay opinion of the Complainant’s supervisor about the nature of her medical condition. Kontny v. Rock County Health Care Ctr. (ALJ Decision, 08/10/07).

In this case, the Respondent granted the Complainant a total of twenty-six consecutive weeks of leave related to her serious health condition (breast cancer and reconstructive surgery due to the cancer) that spanned from August 25, 2004 through February 28, 2005. Thus, the leave included at least two weeks of leave within each calendar year of 2004 and 2005. Under secs. 225. 01(9) and (10), Wis. Adm. Code, it does not appear to make any difference whether this leave granted by the employer for the Complainant’s serious health condition was independent of, concurrent with, or consecutive to any other leave that the Complainant may have been entitled to (whether the Respondent’s own “Medical Leave” or some other leave offered by the Respondent were leave the Complainant may have been entitled to under another law such as the federal Family and Medical Leave Act). So long as the Complainant was granted a leave relating to the Complainant’s own health which was no more restrictive than the leave that the Complainant had available under sec. 103.10(4), Stats., the Complainant’s use of the leave granted by the employer constituted the use of her leave available under sec. 103.10, Stats. Since the maximum leave available under the Wisconsin Family and Medical Leave Act is two weeks in each calendar year, the Complainant received both in 2004 and 2005 the maximum amount of Wisconsin Family and Medical Leave Act leave that she was entitled to for her own health condition under sec. 103.10(4), Stats. Therefore, there was no probable cause to believe that the Respondent violated sec. 103.10(11)(a), Stats., when it discharged her when she was unable to return to work at the end of six months, which was the maximum period of time the Respondent allowed for a leave of absence. Berg v. Gold 'n Plump Poultry (ALJ decision, 01/11/06); aff’d sub nom. Berg v. DWD (Ct. App., Dist. III, unpublished opinion, 01/23/07).

The concept of opposing a discriminatory practice involves more than just requesting leave under the Wisconsin Family and Medical Leave Act. There has to be some decision or practice by the employer that is discriminatory, or that the Complainant reasonably believes is discriminatory. There must be evidence that the Complainant took some action to stand in opposition to that allegedly discriminatory practice. Frank v. US Bank (ALJ Decision, 12/04/03).

Where an employee has previously arranged to take vacation on a scheduled work day and, prior to the vacation commencing, a situation subsequently arises that would entitle the employee to take family leave under sec. 103.10, Stats. on the scheduled work day for which the vacation had previously been approved, the employer must permit the Complainant to take the statutory family leave and then to substitute paid or unpaid leave of any other type provided by the employer. Where the Respondent denied the Complainant family leave because it had a policy of requiring its police officers to schedule their vacation at the beginning of each year, and prohibiting them from rescheduling vacation leave or trading vacation leave during certain specified time periods (including the time period in which the Complainant in this case requested family leave) it violated the FMLA. Felker v. City of Oshkosh (ALJ Decision, 07/18/03).

The employer’s requirement that employees respond to a request for certification of a serious health condition within 15 days of the request was a reasonable amount of time under the Wisconsin Family and Medical Leave Act. The Complainant’s failure to comply with the policy entitled the employer to refuse to grant his request for family leave, and his request to substitute paid leave for unpaid leave. Eberhardt v. Morningstar Foods (ALJ Decision, 02/07/03).

The Respondent did not unlawfully interfere with or restrain the exercise of the Complainant’s rights under the Wisconsin Family and Medical Leave Act by denying her request for a paid day off under the Respondent’s Sick Leave Incentive Program (SLIP) provisions of the collective bargaining agreement governing her employment. The SLIP program provides eligible employees with up to one paid day off if the employee (among other things) did not use any paid sick leave during the applicable trimester period for each calendar year. The Complainant took two weeks of medical leave for surgery, exercising her option to substitute paid sick leave (accrued under her union’s collective bargaining agreement with the employer) for unpaid medical leave under the WFMLA. Several months later, the Complainant requested a paid day off under SLIP. The employer denied her request because she had used paid sick leave during the preceding trimester, having substituted that leave for unpaid WFMLA leave. Both sec. 103.10(9)(a)(2), Stats. and sec. DWD 225.03(4) Wis. Admin. Code, established that the denial of the Complainant’s request for the SLIP paid day off did not interfere with, restrain, or deny her WFMLA rights. The denial of the SLIP day off was a contractual consequence of substituting paid sick leave for unpaid WFMLA leave. Heibler v. DWD, 2002 WI App 21, 250 Wis. 2d 152, 639 N.W.2d 776.

The term “leave to an employee for the birth of the employee’s natural child” in sec. DWD 225.01(6), Wis. Adm. Code, applies only to leave specifically designated for the birth of a child. Here, the Complainant requested two weeks of compensatory time off at the time that his child was born. The employer granted him the compensatory time off, but also deducted two weeks from the Complainant’s WFMLA leave. The Respondent did this because its policy mandates that the City deduct from an employee’s WFMLA leave if the employee “requests paid leave for a reason covered by [WFMLA],” citing sec. 225.01(6), Wis. Adm. Code, as authority. Sec. 225.01(6), Wis. Adm. Code, was created to prevent “stacking” of family and medical leaves. Stacking would occur if an employer granted its employees leave for a specific reason that is also covered under the Act, and the employee then “stacked” those two leaves by using them back to back. Legislative history of the WFMLA shows that the concern over stacking did not include the use of WFMLA leave immediately followed by use of another leave created for a different purpose. In this case, the Complainant was taking compensatory time off, which was leave that had nothing to do with WFMLA leave and was distinct leave that the Complainant himself earned by working overtime. The Respondent violated the Act by also deducting WFMLA leave. City of Madison Water Util. v. DWD (Dane Co. Cir. Ct., 10/10/02).

The Complainant established that he was entitled to take leave under the Wisconsin Family and Medical Leave Act to care for his adult son. The Complainant substituted pay under the Respondent’s sick leave policy for seven and one-half days during which he cared for his son while he was hospitalized, and during which he provided direct and necessary assistance and services to his son, in addition to psychological comfort. Racine Co. v. DWD (Racine Co. Cir. Ct., 08/15/00).

Where an employee is found to have used part of his family leave for the purpose of benefiting a secondary employer or business, that action by the employee may be characterized as a misuse of family leave. Rabehl v. DILHR (Dodge Co. Cir. Ct., 03/20/95).

A Respondent's ad hoc rule prohibiting the Complainant from working during the Respondent's normal working hours while he was on family leave was a violation of the Wisconsin Family and Medical Leave Act. The Respondent's termination of the Complainant for violation of this unwritten rule was also a violation of the Act. Rabehl v. DILHR (Dodge Co. Cir. Ct., 03/20/95).

Read together, secs. 103.10(9)(a) and 103.10(9)(b), Stats., provide that an employee returning from family leave is not entitled to a right or employment benefit to which the employee would not have been entitled had he or she not taken family leave, except that, with respect to group health insurance coverage, an employer is required to maintain group health insurance coverage during an employee’s family leave and an employee returning from family leave is entitled to group health insurance coverage under the conditions that applied immediately before the family leave or medical leave began. Barry-Chamberlain v. DILHR (Dane Co. Cir. Ct., 06/30/94).

The Complainant was discharged for excessive absenteeism. The Complainant established that he had a serious health condition on four of the days for which he was disciplined. The Family and Medical Leave Act prohibits the Respondent from disciplining the Complainant for these days of statutory leave. The Respondent failed to offer any evidence to support a conclusion that it would have still terminated the Complainant's employment if it had not considered these absences. Therefore, the Respondent violated the Act. Meyer v. DHSS (Wis. Pers. Comm'n, 06/11/92).

The Complainant was given a warning for "excessive absenteeism" when she was absent for two days to care for her son, who had a serious health condition. The warning interfered with the Complainant's rights under the Act because the employer's personnel policies treated the accumulation of such warnings as grounds for dismissal. Haas v. DILHR, 166 Wis. 2d 288, 479 N.W.2d 229 (Ct. App. 1991).

The Respondent's discharge of the Complainant for accumulating twenty-one points in a six-month period under the Respondent's no-fault attendance policy violated the Act when five of those points were assessed for time during which the Complainant took leave protected under the Act. MPI Wis. Machining Div. v. DILHR, 159 Wis. 2d 358, 464 N.W.2d 79 (Ct. App. 1990).