Exercising Your Rights Under State And Federal
Family And Medical
Leave Laws
By Linda Harfst
Cullen, Weston, Pines & Bach
The summer of 1999 will mark the sixth year that Wisconsin employees have been protected under both the state and the federal family and medical leave (FMLA) laws. The federal FMLA, signed by President Clinton on February 5, 1993, took effect August 5, 1993. Wisconsin, however, was one of several states which had enacted a state law prior to the federal act. By the time the federal law became effective, workers in Wisconsin already had logged a number of years of prior experience with FMLA law. In fact, a number of court cases interpreting Wisconsin=s family or medical leave law, sec. 103.10, Stats., had already been decided by August of 1993.
Because the concept of family leave was familiar in Wisconsin, the concern here was primarily how the new federal law interacted with the older state law, and which law would apply in a given situation. Although very similar, the two laws are not identical. Each covers specific situations not covered by the other.
The federal law provides expressly in Title IV of the 1993 Family and Medical Leave Law (the federal act) that nothing in the federal law supersedes any greater right provided by state law or negotiated in a collective bargaining agreement. The federal law is, therefore, a floor, or minimum which employers with more than 50 employees must provide. Thus, an initial challenge has been to determine whether both laws apply and, if they do, which law provides the greater rights to an employee. That law is to govern the particular situation.
In those situations where a labor union has negotiated benefits which exceed those of both the state and federal law, the contractual benefits apply. The federal or state law benefits then provide a default for those areas not addressed under the collective bargaining agreement, assuming the employee with the family leave need is otherwise eligible for leave.
Initially, Wisconsin management legal counsel and human resource professionals predicted mass confusion and chaos could arise because of the complexity of the new law and its interrelationship with the preexisting state law. Happily, that has not proved to be the case. In fact, implementation of the federal law has gone smoothly in Wisconsin, and there has been remarkably little litigation, either in the courts or in the administrative forum.
Of the issues that have proved confusing, two of the most puzzling, from both the employee=s and from management=s perspectives, have been the issues of the employee=s right to substitute paid leave for otherwise unpaid leave under the acts, and as well, questions about when an employer may designate leave as family leave under either law. However, reviewing the provisions of the laws step by step helps to clear up any confusion.
An Employee=s Right Under Either Law Is A Right To Unpaid Leave.
Sec. 103.10 (5), Stats. provides that the right to family or medical leave is a right to unpaid leave under Wisconsin law. Similarly, sec. 102 of the federal law provides that the basic right of the employee is that of leave without compensation. The underlying assumptions of both statutes are that many employers do not provide any sort of paid leave, such as vacation or sick leave, and neither law is intended to force employers to change those practices. Both laws simply establish the right of the employee to be absent from employment during a time of family or medical leave, and to be able to return, without fearing loss of employment for taking the necessary time away from work.
Wisconsin Law Allows Substitution Of Paid Leave For The Unpaid Leave Only At The Employee=s Option.
Wisconsin=s family or medical leave act makes clear in sec. 103.10(5)(b) and the accompanying regulation, DWD 225.03 in the Wisconsin Administrative Code, that under state law, substitution of paid leave for unpaid leave is at the option of the employee. Also, under Wisconsin law, an employee may substitute for unpaid family or medical leave Aany other type@ of leave provided by the employer. The Wisconsin Supreme Court has since held that an employee may substitute not just the types of leave available from the employer for the particular purpose of the leave in question, but indeed may substitute any accrued paid leave which the employee has accumulated, even if it was accumulated for other purposes. Richland School District v. DILHR, 174 Wis. 2d 878, 906, 498 N.W.2d 827 (1993). In this case, a school district employee was allowed to substitute accrued paid leave under his collective bargaining agreement for unpaid leave under the Wisconsin family or medical leave act when his family adopted a child, even though the contract did not provide that the leave was to be available when a child was placed for adoption.
Under The Federal Law, An Eligible Employee May Elect, Or An Employer May Require The Employee, To Substitute Any Of The Accrued Paid Vacation, Personal, Or Family Leave Of The Employee For Leave Under The Federal Act.
The federal law thus allows the employer, as well as the employee, to determine what type of leave will be used. 29 CFR 825.207. The purpose of this regulation is to limit the amount of leave that the employee may take, and to prevent the employee from Astacking@ unpaid leave under the act with various accumulated leaves such as vacation, sick leave, and personal leaves which the employee may also have earned in order to be absent from work for a period longer than the twelve weeks of statutory FMLA leave. Our experience is that most Wisconsin employers are well aware of their right under the federal law to require substitution of their employees.
Circumstances arise under which the employee may wish to substitute paid leave for the unpaid leave, even if the employer does not require substitution. Substituting paid for unpaid leave means that the employee=s pay check continues uninterrupted during the period of family or medical leave, so long as he or she has leave available to substitute. As well, the employee may have more than one type of leave accumulated. If so, the employee may have a preference for the type of leave to be substituted.
Under the federal law, unlike Wisconsin law, only certain kinds of accrued leave are substitutable. For example, upon birth, adoption, or placement for foster care of a child, sick leave is not available for substitution for unpaid leave under the federal law. In fact, the employer is not required, under the federal law, to provide paid sick leave in any situation in which that employer would not normally allow use of sick leave.
By contrast, under the federal law, if the request for leave occurs because of a need to care for a family member with a serious health condition or for the employee=s own serious health condition, and the employer provides sick leave for these purposes, the employee may substitute sick leave (or the employer may require substitution of sick leave). In the latter situations, the employee may have both vacation and sick leave accrued and may have a preference as to which is to be substituted. If so, it is to the employee=s advantage to request substitution of the type of leave that he or she prefers, so as to preserve other types of leave, assuming that the person=s leave balances are sufficient.
Under The Federal Law, An Employer Also Has The Right To Designate Leave As FMLA Leave, If The Employer Becomes Aware Based Upon Information Provided By The Employee, That The Employee Is Using The Paid Leave For An FMLA-Allowed Purpose Even If The Employee Didn=t Ask For Federal FMLA Leave.
The text of the administrative rule published in 29 CFR 825.208, verifies that under the federal law, the employer has the right to count paid leave as federal FMLA leave, even if the employee took some other kind of leave, such as vacation leave. Once the employer becomes aware of the fact that the leave is being taken for an FMLA-qualifying purpose, it must notify the employee that the leave is FMLA-designated and will be counted as FMLA leave. If the employer requires substitution (which is likely, since the employee already will be using or scheduled to use paid leave), the employer must also make the decision on substitution within two business days of the time when it determines that the leave qualifies as FMLA leave, and notify the employee.
Under some circumstances, leave may be designated retroactively as FMLA leave. For example, if an employee takes a two-week skiing vacation, and calls in mid-week of the second week to say that at the beginning of that week he had a severe accident requiring hospitalization, and now needs an extension of the time he was scheduled to be away, the employer would be legally justified in retroactively counting the period of the leave that was FMLA-qualifying as FMLA leave because the employer learned that the leave was for an FMLA purpose after the leave began. 29 CFR ' 825.208 (2)(d). In general, however, the employer may not designate a leave as FMLA leave after the employee has returned to work, unless the employer learned about the reason for the absence afterward and gave the employee proper notice, or unless the employer knew the reason but medical certification was delayed.
Employees Can Maximize Their Use Of Family Leaves Under The Wisconsin And Federal Laws.
Wisconsin employees can maximize their rights under both laws. Not all situations are covered under both laws. For instance, while Wisconsin law covers in-law relationships, the federal law specifically excludes coverage of such relationships. If only one law covers a particular situation, the employee has no choice but to use the applicable law. But in situations where both laws apply, the following procedure should assist employees in making sure they receive the maximum benefit. (We mention doing so because we have noticed an increase in employers simply applying the federal law without regard to whether employees might have applicable rights under Wisconsin law.)
Wisconsin leave allowances are shorter in duration than are leaves under the federal act. In Wisconsin, an employee may take up to six weeks for birth or placement of a child, up to two weeks for the employee=s own serious health condition, and up to two weeks for care of a family member with a serious health condition, for a total of ten weeks. Under the federal act, by contrast, the employee may take up to twelve weeks for any one statutory purpose.
State and federal leaves taken for the same statutory purpose run concurrently. For example, if an individual takes the maximum-allowed six weeks of leave under the Wisconsin act for birth of a child, that leave counts as six weeks under the federal act as well. When the six weeks of Wisconsin leave are used up, the employee has remaining six more weeks for the same purpose, for a total of twelve, the maximum allowed under the federal act, assuming that employee did not use part of the leave allowance for any other purpose that year.
Because the employee has control of substituting under Wisconsin law, employees should request to use leave, and they should request to use Wisconsin leave first. Although the federal leave for the same purpose will be Arunning@ in the background, Wisconsin law will allow the employee to take an unpaid leave if the employee wishes, or to control which paid leave is substituted, assuming the employer cannot or chooses not to apply the Adeemer@ clauses as mentioned in the footnote above.
After the Wisconsin leave has been exhausted, if the employee continues to need more leave for the same purpose, the employee should then tap the remaining six to ten weeks of leave under the federal act. At this point, the employer will be able to require substitution of the employee, if the employee has any remaining paid leaves available.
Where the employee or a member of the employee=s family faces an illness or injury that is sufficiently severe that it will likely exhaust the federal leave allowance of twelve weeks, the ability to avoid substitution for two to six weeks (depending upon the facts) while the Wisconsin law is in effect may be crucial to the preservation of the employee=s employment. If the employee can avoid the employer=s action to substitute, and remain on unpaid leave while protected by the Wisconsin law, the employee may be able to extend the available time off.
Once the employee exhausts Wisconsin leave, the federal law will be in effect, and the employer may insist that paid time be substituted for the unpaid time. But since any unused vacation, sick leave, or other leave time the employee has accrued remains available for use after the federal leave is over, the use of unpaid time off under the state law has preserved that time for later use by the employee, thereby avoiding disciplinary consequences or perhaps even preserving the person=s job.
Issues involving the federal and state law often are very complex. Before embarking on family or medical leaves, employees would be well advised to consult with legal counsel to learn all the options that are available in the employee's particular fact situation.
