01-0794 Heibler v. Department of Workforce Development

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“First, under Wis. Admin. Code § DWD 225.03(4), Heibler, having opted to substitute ‘any other type of leave’ (paid sick leave) for unpaid WFMLA leave, remained eligible to accrue ‘any seniority or employment benefit’ that ‘normally’ would have accrued during her leave. The SLIP benefit, however, would not have accrued during Heibler’s leave; by the terms of the collective bargaining agreement, she did not qualify for the benefit because she had used paid sick leave during the applicable trimester. While Heibler accurately argues that she would have had to have substituted paid vacation time, rather than paid sick leave, to qualify for the SLIP benefit, she offers nothing, in law or logic, that would expand WFMLA protections to preempt the contractual consequences of her choice.

“Second, under Wis. Stat. § 103.10(9)(a), Heibler, returning to work after having substituted paid sick leave for unpaid WFMLA leave, became ‘a returning employee.’ Under clause (2) of the statutory provision, she was not entitled ‘to the accrual of any seniority or employment benefit’ during her period of medical leave. Therefore, Heibler did not qualify for the SLIP paid day off, which would have been available had she not used paid sick time during the applicable trimester.”

Order affirmed.

Recommended for publication in the official reports.

Dist I, Milwaukee County, White, J., Schudson, J.

Attorneys:

For Appellant: Jeffrey P. Sweetland, Milwaukee

For Respondent: Richard B. Moriarty, Madison; Ellen H. Tangen, Milwaukee