FMLA (Family and Medical Leave Act) - Wisconsin and Federal Leave Laws
This document provides a summary of the law in this area and answers questions frequently asked of attorneys in the Office of General Counsel. However, the information presented here is intended for informational purposes only and nothing in this document should be construed or relied upon as legal advice. The Office of General Counsel or your Campus Legal Counsel should be consulted regarding the specific facts and circumstances associated with any legal matter.
Two statutes provide an employee with the right to take leave under certain circumstances and to return to employment following that leave. They are the Wisconsin Family and Medical Leave Law (WFMLL) (Wis. Stat. § 103.10; Wis. Admin. Code, Chap. DWD 225) and the federal Family and Medical Leave Act (FMLA, 29 U.S.C. § 2601 et seq.; 29 C.F.R. Part 825). They allow an eligible employee to take unpaid leave:
- to care for an infant or an adopted child.
- to care for a family member with a serious health condition.
- to seek treatment for the employee's serious health condition.
The employee has the right to continued group insurance coverage during the leave and the right to be reinstated in the same job, or an equivalent job, with no loss of pay or benefits.NOTE: When addressing WFMLL/FMLA questions regarding faculty and academic staff, please refer to University of Wisconsin System Unclassified Personnel Guideline #10 for additional information and guidance. When addressing similar questions regarding classified staff, please refer to the appropriate collective bargaining agreement.
Serious Health Condition
- A disabling physical or mental illness, injury, impairment or condition that involves: (1) inpatient care at a hospital, nursing home, or hospice; (2) outpatient care that requires continuing treatment or supervision by a health care provider.
- An illness, injury, impairment, or physical or mental condition that involves: (1) inpatient care including any related period of incapacity or any subsequent or (2) continuing treatment by a health care provider. The test for “continuing treatment” generally requires a period of incapacity lasting more than three consecutive days plus health care professional treatment, or treatment for a chronic or long-term condition.
- A position with equivalent compensation, benefits, working shift, hours of employment and other terms and conditions of employment.
- A position with equivalent employment benefits, pay, and other terms and conditions of employment.
Coordinating Benefits under the WFMLL and the FMLA
The WFMLL and the FMLA are similar in many respects, but have different eligibility requirements and provide different benefits. Determining eligibility and scope of benefits can be a challenging process.
The following rules of thumb for coordinating the WFMLL and FMLA are helpful:
- An employee must meet the eligibility requirements under either law to be covered under that law.
- An employee who meets both the WFMLL and FMLA threshold requirements is eligible for both WFMLL and FMLA benefits. The FMLA does not supersede state laws (such as the WFMLL) that provide more generous family and medical leave benefits. Therefore, when an employee is entitled to leave under both laws, apply the law which provides the greater (more generous) leave rights.
Eligibility for WFMLL and FMLA Benefits
There are two requirements to qualify for WFMLL coverage:
- An employee must have been employed by the same employer for more than 52 consecutive weeks at any time during the employee's employment with the employer.
- An employee must have worked for the employer for at least 1000 hours during the 52-week period preceding the commencement of the leave.
There are two requirements to qualify for FMLA coverage:
- An employee must have been employed by the same employer for at least 12 months.
WFMLL and FMLA Benefits
The WFMLL requires that an eligible employee receive in any 12-month period:
- up to 6 weeks of unpaid leave for the birth or adoption of a child.
- up to 2 weeks of unpaid leave for the care of a child, spouse, or parent with a serious health condition.
- up to 2 weeks of unpaid leave for the employee's own serious health condition.
The FMLA requires that an eligible employee receive unpaid leave in any 12-month period up to 12 weeks:
- for the birth of a child and to care for a newborn child.
- for the placement of a child with the employee for adoption or for foster care.
- for the care of a child, spouse, or parent with a serious health condition.
- for the employee's own serious health condition.
- for “exigencies” arising from a family member’s call to active military service.
The FMLA further requires that eligible employees receive unpaid leave in any 12-month period up to 26 weeks:for the care of a spouse, child, parent or next of kin who is a member of the Armed Forces, National Guard or Reserves and is undergoing medical treatment, recuperation or therapy, is in outpatient status, or is on the temporary disability retired list for a serious injury or illness.
Employee's Notice of Leave to the Employer
- WFMLL: Advance notice of leave, if possible, in a reasonable and practicable manner.
- FMLA: Thirty days notice of leave where the need for leave is foreseeable and notice is practicable (e.g., maternity leave).
Designation of Leave
The employer is responsible for designating leave under WFMLL/FMLA, promptly notifying the employee of the designation, and further explaining the employee's rights under the law. An employer that does not have sufficient information on which to make the determination should consult further with the employee.
- WFMLL: An employer may require certification of the health condition of the employee or the affected family member. The request for certification is limited in scope to certain statutorily prescribed questions. Those questions are:
- Whether the person has a serious health condition.
- The date the condition began and how long it is expected to last.
- The provider's knowledge of the medical facts about the serious health condition.
- If the employee is requesting medical leave, the extent to which the employee can or cannot perform the job.
- FMLA: An employer may require the employee to provide medical certification supporting the need for leave. U. S. Department of Labor Form WH-380 outlines the statutorily prescribed medical certification questions.
Substitution of Paid Leave
- WFMLL: An employee may substitute accrued leave (paid or unpaid) of any type offered by the employer.
- FMLA: An employee may elect, or the employer may require, that accrued paid leave be substituted in some cases. There are no limits on substituting paid vacation or personal leave.
- WFMLL: Permitted for all family and medical leaves in increments equal to the shortest increments the employer permits for any other non-emergency leave. (e.g., hour, half-day, day).
- FMLA: Permitted for serious health conditions when medically necessary. Intermittent leave for births, adoptions, and foster care placements is not permitted unless the employer and employee agree to such leave.
Maintenance of Health Benefits
Under both statutes, an employer must maintain the employee's group health coverage under the same conditions as existed prior to the leave. The employer must continue to pay the employee's share, if any, of the insurance premium.
Both laws require the employer to return the employee to the same position or an equivalent position after the end of the leave with no loss of pay, benefits, or other terms and conditions of employment.
Posting of WFMLL and FMLA Rights
Both laws require employers to post notices informing employees of their rights under the respective laws.
Violation of WFMLL and FMLA Rights
Both laws provide for legal penalties for not providing WFMLL and FMLA rights or for discriminating or retaliating against employees who seek to assert their rights.
If you would like to learn more about the FMLA, click here for a PowerPoint presentation. (PPT)