Two FMLA Laws for Business Regulatory Compliance
The Wisconsin Family Medical Leave Act was one of the first medical leave acts to be passed. It was passed in 1988, a full 5 years before the Federal Family Medical Leave Act was passed (FMLA). Since then many more states have added statewide FMLA laws including California, Connecticut, D.C., Maine, Minnesota, and most recently New Jersey and New York.
There are stark differences between the Wisconsin Act and the Federal Act. The purpose of this article is to provide an overview of what the Wisconsin FMLA act requires and the main differences between it and the Federal FMLA so that employers in Wisconsin can more easily remain compliant with both laws.
Wisconsin’s Family Medical Leave Act (WFMLA) Outline
Like FMLA, the WFMLA provides job protection for employees who need to take a leave from work for various reasons. However, WFMLA provides more comprehensive leave reasons than FMLA which makes it so that employers must provide the greater benefits between the two leave of absences. When applicable, FMLA and WFMLA can run concurrently such as for reasons that both leaves allow.
Qualifying Employees for Wisconsin’s FMLA
Employees whose employers have at least 50 or more permanent employees can qualify for WFMLA. Employees must have worked for their employer for the previous 52 weeks and must have worked at least 1,000 hours during that time. This is different from Federal FMLA, which requires 1,250 hours of work.
Family Members Allowed for Wisconsin’s Family Leave
Wisconsin allows for leave to be taken for the employee’s own health need, their child, spouse or domestic partner, and their parent. Specifically the employee can take leave for a child if the child is under 18 yrs old or is over 18, but is unable to care for themselves because of a serious health condition. Parental relationships include “natural” parents (biological), foster, adoptive, stepparent, legal guardian, and parents of spouses or domestic partners (in-law parents). Federal FMLA does not allow leave for the purposes of caring for a parent in law. Further WFMLA does not allow for leave to be taken for the care of a domestic partner’s child. However, while Federal FMLA also doesn’t have any specific provisions for children of domestic partners, it does have a in loco parentis provision that has been interpreted to include non-traditional caretakers, including domestic partners.
- Child: under 18 or unable to care for themselves due to serious health condition
- Spouse or Domestic Partner
- Parent: including biological, adoptive, foster, step, legal guardian, and in-law parents.
Serious Health Condition
Wisconsin defines a serious health condition as any disabling physical or mental illness, injury, impairment or condition that involves inpatient care in a hospital, nursing home, or hospice. It also includes outpatient care that requires the continuous treatment from a health care provider.
- Inpatient Care: Hospital, Hospice, Nursing Home
- Outpatient Care: Continuous treatment from a health care provider.
Allowed Leave under Wisconsin’s Family Medical Leave
Employees are allowed to take full leave or partial leave for several reasons. Specific timelines of leave are provided in Wisconsin law depending on the relationship and the purpose of the leave.
WFMLA provides leave to both the mother and the father, Therefore, when a child is born or adopted into the employee’s family, up to 6 weeks of family leave can be taken in the first 16 weeks of the birth or adoption of the child.
Employees can also take up to 2 weeks of WFMLA leave to care for their child, spouse, domestic partner, or parent who has a serious health condition.
Lastly, employees can take up to 2 weeks a year for their own serious health condition.
Although employees has multiple allowable reasons for WFMLA leave, the leave is restricted to a total of 8 weeks each year.
Additionally, with the exception of the employee’s own health condition, leave must be taken with consideration to not interrupting the employer’s operations. Employees are also allowed to substitute any types of paid leave such as employer provided sick leave or paid time off for part of their Wisconsin Family Medical Leave.
Documentation of Leave Taken
When the employee takes leave for their child, parent, spouse or domestic partner, the employer is allowed to require documentation that leave was taken in accordance with state law. The certification can state that the family member has a serious health condition, when the condition started, and the medical facts regarding the health condition.
Certification for an employee’s illness can only include an explanation of the extent to which the employee is unable to perform their work duties.
Employers are allowed to require a second opinion for certification that medical leave is necessary, but must pay for the full cost of of obtaining an opinion from a second health care provider.
Protections Provided under Wisconsin FMLA
Employees are protected under medical leave and must be placed back in the same or equivalent position that the held before the leave was taken. Employee benefits cannot be denied because of leave taken. Employees cannot be denied other employment opportunities because of leave taken. For example, employees cannot lose seniority because of medical leave.
Employees can also maintain health insurance if the employee is willing to continue to pay their portion of the premiums. However, employers can require that employees deposit the full amount of the premiums into an account to cover the employer’s contributions in case the employee doesn’t return to work after the leave is taken.
Main Differences between Wisconsin FMLA and Federal FMLA
While Federal FMLA covers employers with 50 or more employees for the previous 20 weeks, Wisconsin’s Act covers employers with 50 or more employees for the previous 52 weeks.
Further, FMLA requires that the employee have worked for the employer at least 12 months and at least 1,250 hours, but it doesn’t have to be consecutive employment. Wisconsin’s FMLA requires that that the employee worked for the employer the preceding 52 weeks and only requires 1,000 hours of work.
FMLA allows up to 12 weeks of leave to be taken, while WFMLA allowed up to 8 weeks of leave, but under more generous reasons. While FMLA allows a combined total of 12 weeks for both parents if they work for the same employer, WFMLA allows 8 weeks for each parents who work for the same employer.
In other words, if one spouse uses all 12 weeks of Federal FMLA, the other spouse would still have 8 weeks of leave under WFMLA.
Additionally, FMLA provides up to a total of 12 weeks for allowable reasons, WFMLA provides specific increments of leave, based on the reasons for the leave.
Another key difference is that while FMLA doesn’t allow for intermittent leaves for the birth or placement of the child into the employee’s home, WFMLA does allow for the employee to choose intermittent leaves.
Lastly, Federal FMLA requires a certification for the employee to return to work, while WFMLA does not.
Examples of when Federal FMLA and Wisconsin FMLA would not run concurrently
Although many of the allowable reasons for FMLA and WFMLA are similar, there are specific circumstances in which the leaves would not run concurrently.
Example 1 Employment with the same Employer
First, if both parents work for the same employer, then the FMLA leaves may be applied differently.
For example, if both parents want to take leave under FMLA, they would have to designate how much leave was being taken by which parent. Federal FMLA allows a total of 12 weeks of leave between both parents at the same employer.
However WFMLA provides up to 8 weeks of leave for both parents. Therefore under FMLA, two employees could each take 6 weeks of FMLA, but have access to another 2 weeks of WFMLA. Or one employee could use all 12 weeks of FMLA and their spouse would still have access to 8 weeks of WFMLA.
Example 2 Child Bonding
Another example of non-concurrent FMLA leave is in the case of child bonding.
FMLA doesn’t allow for intermittent leaves of absences after the birth or adoption of a child, but WFMLA does.
Therefore if an employee chooses to take an intermittent leave after the birth of placement of a child, leave would apply differently. If the employee takes a 2 week leave and then returns to work and takes another 2 weeks leave later for bonding, FMLA would allow the first 2 week leave to count toward FMLA, but would not allow the employee to take another eave later.
The employee would forfeit further leave under FMLA for that purpose. However, WFMLA does allow intermittent leaves after a child’s birth or placement in the home. It is also important to note that WFMLA leave must be taken within 16 weeks of the child’s birth or placement, while FMLA allows for leave to be taken in the first 12 months.
Example 3 Domestic Partner’s Children
A third example where leaves would not run concurrently is in the case of care for a domestic partner’s child. WFMLA specifically excludes children of domestic partners for leave purposes.
However a 2010 interpretation of FMLA allows for certain provisions of leave to be taken for domestic partners as an In loco parentis status.
For example if a same sex partner takes leave to care for their domestic partner’s child, that has been interpreted as allowable under FMLA. Yet that leave would not run concurrently with WFMLA.
Fourthly, FMLA provides provisions for leave to be taken when a family member is deployed with the military. WFMLA has no allowable leave reasons for military deployment.
Therefore an employee can use 12 weeks of FMLA when their spouse is deployed, but would still have 8 weeks of WFMLA for other purposes.
There are other ways that employees can exhaust all of FMLA leave, but not WFMLA. For example if an employee takes 12 weeks of medical leave for their own health condition, they would exhaust FMLA.
However, they would only use 2 weeks of WFMLA and would still have 6 more weeks for other allowable reasons under WFMLA.
Let SwipeClock Help
It is vital that Wisconsin Employers be able to maintain accurate records regarding employee hours worked, leave taken, and applicable reasons for leave. Inaccurate or missing records could result in employer penalties and fines for both Federal FMLA and Wisconsin FMLA.
SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws.
Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance while maintaining the business’s’ bottom lines.
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Written by Annemaria Duran. Last updated May 16, 2017