Wisconsin FMLA Law Expected to Federalize

By
May 2, 2011

Wisconsin’s Family and Medical Leave Act (FMLA) became law in 1987. The federal FMLA became law in 1993. As almost all Wisconsin human resources (HR) personnel are aware, provisions of the two laws differ in many ways. As a result, complying with both laws has been difficult at best and has caused many HR professionals FMLA heartburn. Thus, since the federal law’s inception, HR personnel have hoped that Wisconsin’s law would be federalized. Measures to do so have been proposed but have failed because certain groups (e.g., unions) have opposed a change because it would result in the loss of more favorable benefits in Wisconsin’s law, such as an employee s use of an employer’s paid leave (e.g., sick leave) while on unpaid FMLA leave. However, HR personnel may finally be getting their wish.
On January 21, 2011, Senate Bill 8 (SB 8) was introduced in the Wisconsin Legislature. SB 8 would federalize Wisconsin’s FMLA law in many ways. Certain differences would still exist; however, in light of the many past differing provisions, those that would remain after adoption of SB 8 would be a welcome relief.
Current indications are that SB 8 will be adopted by the Legislature, perhaps with some amendments. The revisions wrought by SB 8 include:
Coverage of FMLA Law and Employee Eligibility.

“Employer” would be defined as an entity employing at least 50 individuals for each working day for 20 or more weeks in the current or preceding year. The state and its political subdivisions (counties, cities, villages, towns, etc.) would be covered regardless of the number of employees.
To be eligible for leave, an employee would have to have been employed by the employer for at least 12 months (need not be consecutive) and have worked at least 1,250 hours for that employer in the last 12-month period.
Only employees who work at a worksite with 50 or more employees within a 75 mile radius of the worksite would be eligible for leave.

Twelve Weeks of Leave.

Twelve (12) weeks of leave in total in a 12-month period would be provided for the purposes provided under the law, with the exception that 14 weeks of additional leave would be provided to care for certain family members who have been injured or who became ill in the service while on active duty (described more fully below).

Military Leave Requirements.

An employee who is the spouse, child, parent, domestic partner, or next of kin of a U.S. armed services member or veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness incurred or aggravated in the line of duty would be permitted to take 26 weeks of leave in a 12-month period (in total) to care for the service member or veteran.
An employee would be entitled to take up to 12 weeks of leave in a 12-month period because of a qualifying exigency (as determined by the Department of Workforce Development by rule) arising out of the fact that the employee’s spouse, child, domestic partner, or parent is on deployment with the U.S. armed forces to a foreign country or has been notified of an impending call or order to covered active duty.

Leave for Childbirth/Adoption.

Eliminates requirement regarding when leave for childbirth or adoption must begin (i.e., eliminates requirement that leave for childbirth commence within a 16 week window before or after the event or it is lost).
Requires childbirth or adoption leave to end within 12 months after the birth or adoption.
Requires leave for the birth of a child to be taken to care for the child (this provision could have far reaching consequences).
Permits leave for foster care placement of a child.
If a husband and wife both work for the same employer, the employer could limit their combined leave for childbirth/adoption purposes and to care for certain family members to a total of 12 weeks, and their combined leave to care for a service member to 26 weeks in a 12-month period.

Leave for Medical Reasons.

Grants leave to care for a spouse, child, parent, domestic partner, or parent-in-law who has a serious health condition, and for an employee who has a serious health condition.
Grants leave to care for an individual for whom the employee acted as a parent, or for an individual who acted as the parent for the employee when the employee was a child, who has a serious health condition (this change is consistent with a recent Department of Labor (DOL) opinion expanding the definition of son and daughter under the federal FMLA).

Intermittent Leave/Reduced Schedule Leave.

Employees would be permitted to take leave for childbirth/adoption purposes on an intermittent or reduced leave schedule basis only if the employer so agrees.
Employees would be permitted to take all other types of leave on an intermittent or reduced schedule basis when medically necessary due to a serious health condition of the employee, the employee’s child, spouse, domestic partner, parent, or parent-in-law, or due to a serious injury or illness of a covered service member.
Employees would be granted leave on an intermittent or reduced leave schedule basis as a result of the “call up” of a family member to active duty.
Employers would be able to require an employee who requests intermittent leave or leave on reduced schedule for a planned medical treatment to transfer temporarily to an alternative position with equivalent pay and benefits.
If a teacher requests intermittent leave or leave on a reduced schedule for a planned medical treatment and the leave would be for greater than 20% of the school year working days, the school district employing the teacher could require the teacher to take leave for a particular duration or temporarily transfer the teacher to an alternative employment position. The school district could also require the teacher to continue taking leave until the end of the semester under certain circumstances, depending on the duration of the leave and how close to the end of the semester the leave ends.

Substitution of Leave.

An employee could elect, or the employer could require, that an employee substitute (i.e., use) other types of leaves provided by the employer while on certain FMLA leaves as follows:

Vacation, personal, or family leave could be used by the employee while on leave for childbirth/adoption, to care for a covered family member (including domestic partner and parent-in-law) who has a serious health condition, and for a “call up” to active military duty.
Vacation, personal, or sick leave could be used by the employee while on leave to care for a covered family member (including domestic partner and parent-in-law) who has a serious health condition or for medical leave, with the exception that an employer would not be required to provide paid sick leave in such circumstances if the employer does not normally provide sick leave for those purposes.

SB 8 would also permit an employer to obtain much more information in a medical certification form than an employer can currently obtain. Unlike the federal law, SB 8 would also allow a returning employee to either be returned to his old position or an equivalent position but without regard to whether the employee’s old position is vacant. Another unique twist of SB 8 is that it provides that only employees who have actually taken leave for the purpose for which it was intended are entitled to reinstatement at all.
One drawback for employers with regard to SB 8 is that it extends the statute of limitations for filing a complaint against an employer. Currently, an employee must file a complaint within 30 days of the alleged violation. SB 8 extends this statutory limitation to two years in most cases and to three years if the violation is deemed willful.
What Does This Mean For You?
If SB 8 is enacted, employers will have to revise their FMLA policies and forms to ensure compliance with the new law. For example, if policies currently have bifurcated sections for both the state and federal FMLA laws, those sections can be combined. However, when combining the two sections, certain provisions unique to Wisconsin’s law (e.g., leave for a parent-in-law or domestic partner) would have to be retained. Other variances would also have to be addressed. Failure to do so could result in an employer inadvertently violating the law and a claim being filed against the employer, or more leave being granted to an employee than the employee is entitled to.
If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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