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Kraft Foods2/22/2001
y set forth in the collective bargaining agreement before substitution is allowed" under the WFMLA. Id. at 898. The department assumed that employees would use more of their available sick leave if substitution for family leave were allowed than if it were not. It concluded, however, that this would only constitute increased "use costs," not "unanticipated costs."
. We conclude that it was not unreasonable for the department to reject Oscar Mayer's "unanticipated costs" argument. We note first that the supreme court's use of the phrase in Richland School District, was at most a passing comment in its discussion of the legislative purpose behind Wis. Stat. § 103.10(5)(b). A prohibition against imposing "unanticipated costs" was not central to its holding. Indeed, the court noted later in the opinion that the "substitution provision increases the opportunities for a state employe to use existing accrued paid leave, as opposed to creating additional paid leave." Id. at 904. There can thus be no question that the supreme court was well aware that permitting the substitution of paid leave for unpaid family leave would inevitably result in increased usage of existing paid leave benefits, benefits that might otherwise go unused. We agree with the department, however, that that fact alone cannot be used as a justification for denying substitution, under either the language of the statute or the court's discussion in Richland School District. Permitting substitution in this case neither increases the maximum number of paid sick leave days available to any employee nor eliminates the "draw-down" of available benefits when either sick leave or family leave is taken.
. As we have noted, the department concluded that the three- or seven-day waiting period required before an employee is entitled to paid sick leave, is a non-transferring "condition" of the sick leave benefit, similar to the requirement for a "disability caused by sickness or accident." In its de novo consideration of the issue, the circuit court concluded that the waiting period was "more properly" viewed as a factor in the accrual determination. That is, just as no sick leave benefit accrues to an employee during his or her first year of employment with Oscar Mayer, so, too, in the circuit court's view, no sick leave should be deemed to accrue to an employee until the specified number of days of absence from work have passed.
. The circuit court's interpretation may well be no less reasonable than the department's. As the circuit court itself recognized in another part of its decision, however, it is precisely in the interpretation and application of its "accrued leave rule," Wis. Admin. Code § DWD 225.03(1), that we must accord the department the greatest deference. See Richland School District, 174 Wis. 2d at 894. We are not persuaded that the department's interpretation that Oscar Mayer's sick leave benefit accrues irrespective of the waiting period, and that the waiting period requirement is a non-transferring condition when sick leave is substituted for family leave, contravenes either the language of the WFMLA or the legislature's intent when enacting it. The department's interpretation also has a rational basis and comports with the holding of Richland School District. See id. at 898. In short, the department's interpretation is a reasonable one and must be affirmed.
. Finally, we observe that that classifying the waiting period as a non-transferring condition of eligibility, as opposed to an element determining accrual, may represent a policy choice as much as it does a legal interpretation. If so, the choice is the department's to make, not ours. See Roehl Transport, Inc. v. Wisconsin Div. of Hearings and
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