FMLA and WFMLA
The Federal Family and Medical Leave Act (FMLA) and the Wisconsin Family and Medical Leave Act (WFMLA) provide you with the right to take job-protected leave with continued medical benefits when you need time off from work to care for yourself or a family member who is seriously ill, to care for a newborn or newly adopted child or to attend to the affairs of a family member who is called to active duty in the military.
You may be eligible for more generous leave provisions. Leave taken for FMLA-eligible reasons must run concurrently under FMLA, WFMLA and other leave provisions available. The leave available under the various provisions is exhausted simultaneously. To understand how the integration of laws with state and university policies affects you, please contact your campus human resources office.
See the Department of Labor's Employee's Guide to the Family and Medical Leave Act for additional information.
DETAILS OF SPECIFIC FMLA PROVISIONS
Policy for employees who consider themselves in a parental relationship with a child but who have no legal or biological relationship to the child: Effective June 22, 2010, employees who consider themselves to have a parental relationship to a child but who do not have a legal or biological relationship to the child may be eligible to take up to 12 weeks of job-protected leave to bond with a child due to birth or placement for adoption or to care for a child who has a serious health condition. For detailed information, see the document Clarification of who may stand in loco parentis of a child under the Family and Medical Leave Act (FMLA). The policy mainly pertains to taking a leave for the birth/adoption or care of a domestic partner's child but also extends to any employee who assumes parental responsibilities of a child but has no legal or biological relationship to the child.
A variety of changes to federal FMLA provisions were effective in January 2009, including the addition of military leave related benefits. The National Defense Authorization Act of 2010 was signed into law on October 28, 2009, and further amended military leave benefits under FMLA. See a the summary of the changes for more information. The new federal FMLA provisions also outline new forms requirements.
- Domestic Partner coverage under WFMLA provisions: Effective June 30, 2009, WFMLA was expanded to include an employee's right to take up to two weeks of job-protected leave to care for a domestic partner or a domestic partner's parent. Please see the summary of changes for more information.
For eligibility purposes, all State of Wisconsin employers, including the University of Wisconsin System are considered one employer.
- You must have worked for the State for more than 52 consecutive weeks.
- You must have worked for the State for at least 1,000 hours during the 52-week period preceding beginning of the leave. You may include vacation, sick leave and other paid leave taken to count to the minimum 1,000 hours.
- You must have worked for the State for at least 12 months (need not be consecutive).
- You must have worked for the State for at least 1,250 hours of service during the 12-month period preceding the beginning of the leave. Count only actual hours worked.
All leave entitlements, except FMLA leave to provide care for an injured or ill military service member, are based on a calendar year basis for classified employees and a fiscal year basis (July 1 to June 30) for unclassified employees.
You are allowed up to ten workweeks per year of unpaid job-protected leave with continued medical benefits as follows:
- Up to six weeks of unpaid leave for the birth or adoption of a child*, to begin within 16 weeks of the birth or placement of that child. No more than one six-week period per child.
- Up to two weeks of unpaid leave for the care of a child*, spouse, domestic partner or parent with a serious health condition. Your employer may require certification from a health care provider.
- Up to two weeks of unpaid leave in a 12-month period for your own serious health condition that makes you unable to perform your duties. Your employer may require certification from a health care provider.
You are allowed up to 12 workweeks per year of unpaid, job-protected leave with continued medical benefits for any combination of following reasons:
- To care for your child* after birth, adoption or foster care placement - the leave must conclude within 12 months of the event
- To care for your spouse, child* or parent who has a serious health condition
- To seek treatment for your serious health condition
To take a leave due to any qualifying exigency that arises because you have an eligible family member (spouse, son, daughter or parent) that is called to active duty or is on active duty status in a foreign country. The servicemember must be either in the reserve component of the Armed Forces (e.g. National Guard) or be a member of the regular component of the Armed Forces. The U.S. Department of Labor defines eight broad categories for which an employee may use FMLA leave:
- Short-notice deployment (7 days notice or less)
- Attend military events/ceremonies and related activities related to active duty or call to active duty
- Childcare and school activities
- Financial and legal arrangements
- Spend time with a military member who is on temporary rest and recuperation leave
- Post-deployment activities
- Additional activities not encompassed in the other categories, but agreed to by the employer and employee
*A child is a son or daughter who is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis to the child.
Under FMLA only, you are also allowed up to 26 workweeks of unpaid, job-protected leave with continued medical benefits in a "single 12-month period" to care for an eligible military servicemember who has a serious injury or illness that occurred in the line of duty on active duty (or existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the Armed Forces) for which the servicemember is undergoing medical treatment, recuperation, therapy, on outpatient status or is on the temporary disability retired list.
- The servicemember must be a current member of the Regular Armed Forces, including a member of the National Guard or Reserves, or a member of the Armed Forces, the National Guard or Reserves who is on the temporary disability retired list or a veteran who was a member of the Armed Forces within five years of the date the veteran undergoes medical treatment, recuperation or therapy.
- The employee must be the spouse, son, daughter, parent, or next of kin (neared blood relative other than the servicemember’s spouse parent, son or daughter) of a covered servicemember.
The “single 12-month period” commences on the first day of leave taken to care for the servicemember and expires 12 months from that date
- If the employee does not take all of the 26 workweek entitlement during the “single 12-month period,” the remainder of the 26 workweek entitlement is forfeited.
- The “single 12-month period” is applied on a per-covered-servicemember, per-injury basis so an employee may be entitled to take more than one period of 26 workweeks of leave if the leave is to care for a different servicemember or the same servicemember with a subsequent illness or injury.
- No more than 26 workweeks of leave may be taken within any “single 12-month period”
- An employee is entitled to a combined total of 26 workweeks of leave for any FMLA-qualifying reason during the “single 12-month period.” Within the “single 12-month period,” an employee is limited to a total of 12 weeks of FMLA leave for any purpose other than to care for an injured servicemember.
See detailed information regarding the military leave provisions under FMLA in the summary of FMLA changes.
SUBSTITUION OF PAID LEAVE DURING A FMLA AND/OR WFMLA LEAVE
Under WFMLA, employee may elect to substitute any type of employer-provided paid leave (vacation, sick leave, personal holiday...) during WFMLA-approved leave. The employer may not force substitution.
Under FMLA only, employee may be eligible to substitute some forms of employer-provided paid leave during a FMLA-approved leave. There is no limit on substituting paid vacation, sabbatical, personal/floating holiday or comp time but the employee many not substitute paid sick leave for any situation where the employee is not otherwise allowed to use sick leave per employer sick leave policy. For example, an employee may not use sick leave during a FMLA military exigency leave to arrange for childcare, attend military ceremonies, attend to legal affairs... Sick leave may also not be used to care for a newborn child or newly placed adopted child or foster child under FMLA.
FMLA and WFMLA PROVISIONS
The Office of State Employment Relations (OSER) developed a side-by-side comparison of FMLA and WFMLA provisions that outline all facets of both programs and which program is more generous. The employee is always eligible to receive the more generous provision. The Department of Workforce Development also provides a comparison guide and FAQ on their website.
The U.S. Department of Labor (DOL) summarizes all FMLA provisions in Fact Sheet #28: The Family and Medical Leave Act of 1993. The DOL also has a website dedicated to the FMLA and a FMLA poster that must be posted by the employer.
UW System Administration General Counsel's website outlines WFMLA and FMLA provisions (includes links to an FAQ and slide show presentation).
The full text of the FMLA Final Rule can be found in 29 CFR Part 825 (the actual Act begins on page 141 of the PDF). The WFMLA was created by Wis. Stats. §103.10 and its implementation is outlined in Wis. Admin. Code Ch. DWD 225.
W/FMLA - RELATED FORMS
Employee Request for Family and/or Medical Leave (UWS 80) - employee completes this form to request W/FMLA-protected leave. An employee who requests a WFMLA leave to care for a domestic partner or a domestic partner's parent must complete this form in order to certify the domestic partnership for WFMLA purposes.
Notice of Eligibility and Rights & Responsibilities (UWS 81) - employer gives this completed form to the employee to inform the employee of eligibility to use W/FMLA leave, to outline any information needed by the employee to certify the reason for leave and to notify the employee of rights and responsibilities.
Certification by Health Care Provider for Employee's Serious Health Condition (UWS 82) - employee's health care provider must complete this form to certify the employee's serious health condition if an employee is taking a concurrent FMLA and WFMLA leave. Note regarding employees who take a WFMLA leave only - If an employee is taking a WFMLA only leave (employee does not qualify for federal FMLA), the employee should use the WFMLA compliant form, UWS 82a, to certify his or her own serious health condition.
Certification by Health Care Provider for Family Member's Serious Health Condition (UWS 83) -the employee's family member's health care provider must complete this form to certify the family member's serious health condition if an employee is taking a concurrent FMLA and WFMLA leave. Note regarding employees who take a WFMLA leave only - If an employee is taking a WFMLA only leave (employee does not qualify for federal FMLA and/or the employee is taking a leave to care for a domestic partner or a domestic partner's parent), the employee should use the WFMLA compliant form, UWS 83a, to certify a family member's serious health condition.
Certification of Qualifying Exigency for Military Family Leave (UWS 84) - an employee must complete this form to certify the exigency that was created because a family member was called to active military duty from a reserve status.
Certification of Serious Injury or Illness of Covered Servicemember for Military Leave (UWS 85) - an employee must complete this form if the employee wants FMLA-protected leave to care for a covered military servicemember who is a family member or next of kin and who is seriously ill or injured due to military service
- Designation Notice (UWS 86) - employer gives this completed form to the employee who has requested a W/FMLA-protected leave to let the employee know if the leave is approved and/or if the employee needs to submit any additional information before the leave can be approved.
EFFECT ON TENURE
Family and medical leave does not constitute a break in continuous service for faculty (chg. UWS 3.04(3), Wi's. Admin. Code) or academic staff (UWS 10.3(2)(a)3, Wi's. Admin. Code). When the leave is due to childbirth or adoption, or significant responsibilities with respect to your own or a family member's disability or chronic illness or a qualifying exigency, and those circumstances could significantly impede progress toward achieving tenure, that leave is not included in the seven-year probationary period. Faculty and academic staff may be granted up to a year probationary extension for the birth or adoption of a child.
Example: A faculty member has been on probationary status for a total of nine years because s/he was granted two requests for one-year extensions because of the birth of two children. The faculty member's teaching, research, professional and public service and contribution to the institution is evaluated as if only seven years were worked towards achieving tenure, rather than 9 years worked toward this achievement.
FOR MORE INFORMATION
The University of Wisconsin policy for unclassified employees on family and medical leave is included in Unclassified Personnel Guideline #10 where the use of sick leave is addressed. Sections 3, 10, and 19 of chg. UWS, Wisconsin Administrative Code, provide Board of Regents policies for university faculty and academic staff.
The WFMLA and FMLA policy for classified employees is explained in detail in chapter 724 of the Wisconsin Human Resources Handbook. If you are represented, your collective bargaining agreement may provide more liberal leave provisions.
This document was last revised on June 22, 2012