01-2713 Geen v. Labor & Industry Review Commission

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“Although it is true that neither the FMLA nor the regulations define what constitutes a ‘reasonable opportunity to cure,’ it seems unlikely that the Department of Labor intends that an employee’s opportunity to cure an inadequate certification should expire before the end of the mandatory fifteen-day period for submitting a certification in the first instance. …

“Although Geen knew that he occasionally suffered from migraine headaches, he could not have foreseen the particular dates on which he would be absent due to his migraine headaches. Geen’s two disability-related absences do not therefore appear to fall under the category of ‘intermittent leave.’ In any event, the regulations provide that when an employer chooses to request medical certification, it ‘must allow at least 15 calendar days after the request’ for the employee to return the certification. …

“In summary, we conclude that the commission’s determination that Stoughton reasonably accommodated Geen’s disability may be unreasonable because it appears to conflict with the legislative intent underlying the FMLA and Wis. Stat. § 111.34(1). The commission determined that Stoughton reasonably accommodated Geen’s disability by giving him the opportunity to have his disability-related absences declared medical leave under the FMLA, but it did not consider all of the requirements the FMLA and related regulations place on employers.”

Order modified.

Recommended for publication in the official reports.

Dist IV, Dane County, Albert, J., Deininger, J.

Attorneys:

For Appellant: David C. Rice, Madison; Amy O. Bruchs, Madison; Christine Cooney Mansour, Madison

For Respondent: Brett C. Petranech, Madison