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Kraft Foods2/22/2001
nd they are not in conflict with the supreme court's discussion in Richland School District, quoted above. The department, after applying the criteria to the present facts, reasonably concluded that sick leave had "accrued" to the claimants in this case. First, the benefit arises from the parties' collective bargaining agreement. Second, the amount of paid sick leave available to a given employee is specified and quantifiable. For example, if an employee has worked at Oscar Mayer for six years, he or she has ten weeks of sick leave available in a twelve-month period. Third, the benefit has a "draw-down" feature, by which the amount of available leave decreases as the employee uses it. Fourth, although there is no leave "carry-over" feature, the benefit "accumulates" over time because (1) the amount of leave available renews to the maximum every twelve months, and (2) the maximum amount of leave available increases with an employee's longevity.
. In Oscar Mayer's view, the department's determination that the present sick leave benefit creates "accrued" leave is unreasonable and inconsistent with Richland School District, which, according to Oscar Mayer, requires that an accrued, substitutable leave be "a vested, earned, or existing right or benefit." Oscar Mayer asserts that the claimants have no vested right in the sick leave benefit because (1) the leave does not "accumulate" over time, but rather must be used within one year, and (2) it is contingent on an employee being sick for several days before receiving a paid benefit. Oscar Mayer equates its sick leave benefit with that provided under a typical disability insurance policy.
. Although the sick leave benefit in the parties' collective bargaining agreement may resemble a disability insurance policy, we agree with the department that any such resemblance is irrelevant. The issue is whether the sick leave benefit meets the requirements as a substitute leave under the WFMLA, and, as we have discussed, the department reasonably concluded that it does. Oscar Mayer's sick leave benefit "accumulates over time" by renewing annually and increasing with an employee's seniority. And, 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 Oscar Mayer may not, in its discretion, deny a request for payment of the benefit. See Richland School District, 174 Wis. 2d at 898.
. Even though the presence of the sick leave waiting period does not render unreasonable the department's conclusion that the leave accrues and is substitutable under Wis. Stat. ยง 103.10(5)(b), it does not necessarily follow that Oscar Mayer must allow substitution commencing on the first day of family leave, as the department also concluded. Oscar Mayer argues that, even if its sick leave is accrued and can be substituted under the WFMLA, a claimant may only be paid for days of family leave beyond the waiting period. Allowing substitution of the sick leave benefit from the first day of a family leave, according to Oscar Mayer, imposes "unanticipated costs," and thus conflicts with the supreme court's observation in Richland School District that " hrough sec. 103.10(5)(b), the legislature has made it possible for employes to draw down on their leave accounts during FMLA leave, without imposing unanticipated costs on the employer." Id. at 901 (emphasis added).
. The department reasoned, however, that the claimants could substitute paid sick leave from the first day of leave because, as explained in Richland School District, an employee need not satisfy "the conditions of leave eligibilit
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