FMLA

Legal Topics

Q. What if an employer's leave policy or a collective bargaining agreement provides greater family and medical leave benefits than the WFMLL or FMLA?
A. The leave policy or collective bargaining agreement controls and applies to the extent it is more generous.

Q. If an employee is entitled to leave under both the WFMLL and the FMLA, how is the employee's leave charged against the entitlement?
A. Leave use counts against the employee's entitlement under both laws. The Wisconsin and federal leaves will run concurrently when an employee is entitled to both. An employee cannot stack WFMLL and FMLA leave entitlements.

Q. Do vacation leave, sick leave, and other leave or layoff periods count toward the 52 consecutive weeks of employment requirement for eligibility for leave under the WFMLL?
A. Yes. The number of hours the employee actually worked in those weeks is irrelevant.

Q. Do vacation leave, sick leave and other leave count toward the 12 months of employment requirement for eligibility for leave under the FMLA?
A. Yes. The number of hours the employee actually worked is irrelevant so long as the employee was in paid status for 52 consecutive weeks. If the employee was on the payroll for any part of a week, that week counts as a full week of employment.

Q. Under the FMLA, do the 12 months of employment required for eligibility need to be consecutive months?
A. No. All time worked for an employer is counted.

Q. Under the WFMLL, do the 52 weeks of employment required for eligibility need to be consecutive?
A. Yes. The statute clearly states that the 52 weeks of employment must be consecutive. However, the Wisconsin Court of Appeals has ruled that any 52 consecutive weeks of employment for the employer will satisfy this requirement. The provision does not require that the 52 consecutive weeks immediately precede the request for leave.

Q. Do vacation leave, sick leave, and other paid leave count toward the minimum 1000 hours during the 52 consecutive weeks of employment requirement under the WFMLL?
A. Yes. An employee can add the number of hours of paid vacation leave, paid sick leave, or other paid leave used during this period to the number of hours actually worked to satisfy the 1000-hour requirement. The employee must accrue the 1000 hours during the 52 weeks prior to the request for leave.

Q. Do vacation leave, sick leave, and other leave count toward the minimum 1250 hours of service requirement under the FMLA?
A. No. The FMLA differs from the WFMLL in this respect. The FMLA only counts hours actually worked. Overtime hours do count toward the FMLA total.

Q. Under the WFMLL, in what time frame must an employee take leave in conjunction with the birth or adoption of a child?
A. The employee may begin this leave prior to, on, or after the birth or adoption; however, the employee must begin the leave within 16 weeks before or after the birth or adoption.

Q. Is there a similar requirement under the FMLA for leave taken in conjunction with the birth, placement, or adoption of a child?
A. Yes. The leave may be taken prior to, on, or after the birth, adoption, or placement of the child, but must be concluded not later than 12 months after the birth, adoption, or placement.

Q. When does the 12-month period of time in which an employee may take leave referred to in the WFMLL begin?
A. The University of Wisconsin System uses a fiscal year for unclassified employees and the calendar year for classified employees. For example, beginning each fiscal year (July 1), eligible unclassified employees are entitled to up to 6 weeks of leave for the birth or adoption of a child and up to 2 weeks of leave to care for a family member with a serious health condition or to care for the employee's serious health condition. Beginning each calendar year (January 1), eligible classified employees are entitled to the leave described in the preceding sentence.

Q. When does the 12-month period of time in which an employee may take leave referred to in the FMLA begin?
A. The FMLA permits the employer to select the period. The University of Wisconsin System uses a fiscal year for unclassified employees and a calendar year for classified employees. For example, beginning each fiscal year (July 1), eligible unclassified employees are entitled to up to 12 weeks of leave. Beginning each calendar year (January 1), eligible classified employees are entitled to up to 12 weeks of leave.

Q. Is an employer permitted to recover group health insurance premiums paid during the course of leave if an employee fails to return from leave, or returns from leave only briefly?
A. Yes. Both the WFMLL and the FMLA permit the employer to recover health insurance premiums if the employee fails to return from leave, or returns for fewer than 30 days.

Q. Can the employer recover these premiums by setting off the amount from the employee's paycheck?
A. No. The employer needs to commence a collection action and obtain a judgment against the employee to recover the premiums. The employer cannot engage in "self-help" collection or unilaterally set off the amount from the employee's paycheck.

Q. Does an employee need to expressly assert rights under the WFMLL or FMLA to meet the employee's obligation to provide the employer with notice?
A. No, but the employee will have to state a qualifying reason for the leave.

Q. Should an employer designate leave taken for a disability (ADA) or under worker's compensation as WFMLL/FMLA leave?
A. Yes. If the leave meets the criteria for WFMLL/FMLA leave, it generally is in the employer's interest to be proactive and to designate the leave as WFMLL/FMLA even if the employee does not request the designation. This ensures that the leave is counted toward the employee's entitlement.

Q. What is the maximum amount of leave that a pregnant employee is entitled to under the WFMLL?
A. Eight weeks - two weeks of medical leave and six weeks of family leave to care for a newborn.

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 UW System Administrative Policy 1212 (formerly BN3) Sick Leave for additional information and guidance. When addressing similar questions regarding classified staff, please refer to the appropriate collective bargaining agreement.

Definitions

Serious Health Condition

WFMLL

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.

FMLA

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.

EQUIVALENT POSITION

WFMLL

A position with equivalent compensation, benefits, working shift, hours of employment and other terms and conditions of employment.

FMLA

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.  More information can be found below and on the UW System Human Resources Family and Medical Leave webpage.

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.
  • An employee must have been employed for at least 1250 hours of service during the 12- month period preceding the commencement of the leave.

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.

Medical Certification

  • 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.

Intermittent 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.

Job Protection

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.