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All in a Day's Work® - Insights on Labor & Employment Law

Amending the Wisconsin Family and Medical Leave Act

On January 21, 2011, Senate Bill 8 was introduced to the Wisconsin legislature in an attempt to conform Wisconsin’s current family and medical leave law to the federal Family and Medical Leave Act (FMLA).  The proposed amendments to the Wisconsin Family and Medical Leave Act (WFMLA), Wis. Stat. § 103.10, although touted as a simplification of Wisconsin’s leave laws, will not, as drafted, relieve Wisconsin employers of additional leave obligations under state law.

For example, while the bill amends the eligibility and leave entitlements (a total of 12 weeks for one or more covered leaves) to conform to federal law, the bill fails to update the definition of a serious health condition to mirror the detailed definition of a serious health condition found in the federal regulations.  The effect of this omission is that Wisconsin employers may still be required to provide leave in circumstances in which federal leave is not available.  Perhaps these omissions will be addressed in implementing regulations that will be published in the event the bill becomes law, but, for now, employers in Wisconsin are faced with the possibility that they may have to provide 12 weeks of leave for employees who suffer from a serious health condition, as broadly defined under the revised Wisconsin statute.

The bill proposes many revisions to the Wisconsin law that will likely be well received by Wisconsin employers, including updating Wisconsin law to allow for employers to force the use of available paid leave during otherwise unpaid family and medical leave and tightening Wisconsin’s notice and certification requirements.  These amendments, however, do not provide Wisconsin employers all the rights they have under federal law.  Notably, the proposed revisions to the Wisconsin law do not allow employers to seek clarification or authentication of medical certification forms, a right that was incorporated into the federal implementing regulations in 2009.

The bill also preserves certain Wisconsin-specific leave such as leave to care for a domestic partner, a leave that is not available under federal law.  In addition, the bill incorporates the federal provision that allows employees to take leave to care for an individual for whom the employee stands in place of a parent or for an individual who stood in place of the parent when the employee was a child.  This provision of the federal law was the topic of a recent U.S. Department of Labor Administrator’s Interpretation that clarified that, under this provision of the FMLA, non‑traditional caretakers such as unmarried same-sex or opposite-sex partners may take leave to care for their partner’s child.  See this August 2010 Vantage Point article regarding this Interpretation.  Accordingly, the incorporation of this provision could represent an expansion of leave benefits for unmarried partners in Wisconsin.

The proposed amendments, only briefly summarized above, will undoubtedly affect leave administration in Wisconsin should the bill become law.  We will keep you posted on the progress of this bill as it makes it way through the Wisconsin legislature.

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