May 4, 2011 – When confronting legal issues associated with family and medical leave laws, lawyers generally focus on the requirements of the federal Family and Medical Leave Act (FMLA). Wisconsin lawyers, however, need to remain cognizant of Wisconsin’s Family and Medical Leave Act (WFMLA), which is often a trap for unwary lawyers because it commonly provides rights to employees that are greater than those provided by the FMLA. The following tips will assist lawyers in advising clients on family and medical leave matters.

1) Employee eligibility

Eligibility for leave is calculated differently under Wisconsin and federal law. To be eligible for leave under the FMLA, employees must meet a threshold of 1,250 hours, whereas under Wisconsin law, the threshold is only 1,000 hours. In addition, the calculation of hours to determine employee eligibility under the FMLA and WFMLA differ. Under the federal law, eligibility is determined by calculating the number of hours worked by employees during the previous 12 months. In contrast, under Wisconsin law, eligibility is determined by the number of hours for which the employee received pay during the previous 52 weeks. Accordingly, an employee may be eligible for WFMLA leave if he or she worked less than 1,000 hours but used other paid time off from work.

2) Types of leave available

Generally, the types of leave provided for under the FMLA and WFMLA are similar (for example, leave for a serious health condition, the birth of a child, or to care for a family member). However, the following forms of leave are only covered under one law; therefore, employers may not concurrently designate these leaves as both FMLA and WFMLA:

• Placement of foster children. An employee may take leave for the placement of a foster child under the FMLA but not under the WFMLA.

• Care for an in-law. An employee may take WFMLA leave to care for a parent-in-law, but he or she may not take FMLA leave for such a purpose.

• Service member leave. Under the FMLA only, employees are entitled to 12 weeks of leave for a “qualifying exigency” related to a call to military duty and up to 26 weeks of leave during a single 12-month period for leave to care for an ill or injured service member.

In light of these differences, all leave requests should be closely reviewed under both federal and Wisconsin law to determine coverage.

3) Treatment of domestic partners

Domestic partners may be eligible for leave under both federal and Wisconsin law; however, the nature of the leave entitlement varies under the laws. As of June 30, 2009, Wisconsin employees are eligible for WFMLA leave to care for a domestic partner with a serious health condition. In addition, employees may take WFMLA leave to care for the parent of a domestic partner. The WFMLA, however, specifically excludes from coverage employee leave to care for the child of a domestic partner.

To complicate matters, the FMLA does not provide covered leave to care for a domestic partner who is ill, but a 2010 Department of Labor Administrator’s Interpretation effectively ensures that nontraditional caretakers, such as same sex partners, may take leave to care for their partner’s child under the in loco parentis provision of the federal regulations. Accordingly, if an employee provides financial support or provides day-to-day care for his or her domestic partner’s child, such employee is eligible for leave under the federal law (but not the WFMLA).

4) Amount of leave available

Under the federal law, an employee is entitled to up to 12 workweeks of unpaid leave during a 12-month period for any covered reason. The WFMLA, on the other hand, apportions the amount of leave that an employee may take for a particular reason. Under Wisconsin law, an employee is entitled to 10 workweeks of unpaid leave during the calendar year as follows:

• six weeks for the birth or placement for adoption of a child;

• two weeks to care for a seriously ill child, spouse, domestic partner or parent (includes parents-in-law); and

• two weeks for the employee’s own serious health condition.

The different apportionment of leave will require administrators to track WFMLA and FMLA leave entitlement separately, and there may be occasions when leave cannot be concurrently designated as leave under both laws.

5) Intermittent leave

One of the most frustrating aspects of family and medical leave is administering intermittent leave. Lawyers often forget that intermittent leave is treated differently under the federal and Wisconsin laws, and this can create liability for employers. With the exception of family “bonding” leave that is taken in association with the birth of a child, all federal leave may be taken intermittently when the leave is deemed medically necessary by a health-care provider. Bonding leave may only be taken intermittently at the discretion of the employer. This means that employers retain the discretion to deny federal intermittent leave if the leave is not medically necessary.

In contrast, Wisconsin law allows for intermittent leave at all times, subject to the reasonable scheduling requirements of the employer. Accordingly, parents may take their six weeks of WFMLA paternity leave on an intermittent basis even though their employer can restrict their federal leave.

About the author

Margaret R. Kurlinski, Washington Univ. 2005, is a member of Godfrey & Kahn S.C.’s labor, employment and immigration practice group in Milwaukee. She can be reached at (414) 287-9539 or mkurlinski@gklaw.com.