Frequently Asked Questions About Family And Medical Leave Rights

By Melissa M. Thiel Collar, WPPA Staff Attorney

It is commonly said that the law is ever changing. This could not be more true than in the area of labor and employment law, especially employees’ rights under the various family and medical leave statutes. Since the WPPA Legal Department last addressed the various elements of employees’ family and medical leave rights, the statutes and the courts’ interpretations of the statutes have changed.

Among the most common questions the WPPA Legal Department receives are those concerning issues arising under the Family and Medical Leave Act (FMLA) and the Wisconsin Family and Medical Leave Act (WFMLA). As a result, the following article addresses common scenarios and questions regarding the FMLA and the WFMLA. However, this article should not be used as a primary source of your legal rights. Your family and medical leave rights must be evaluated on a case-by-case basis in conjunction with any leave provisions included in your collective bargaining agreement or in your employer’s policies or ordinances. Please consult with your business agent should you have a question regarding your family and medical leave rights.

Initially, it is important to keep in mind that there are several sources of these leave rights. The most prominent are those discussed in this article: the FMLA, the WFMLA, any collective bargaining agreement between the employer and the employer’s employees and the policies of the employer. For leave purposes, a general principle of law is that an employee is entitled to the benefits that are the most favorable to the employee from any of these sources.

The first question everyone asks is: "Am I eligible for family and medical leave?"

In most circumstances, under the FMLA, employees who have worked for an employer for at least 1250 hours in the preceding 12 months and were employed by the employer for the past 12 months at the employer’s work site with 50 or more employees are eligible for leave.
Generally, to be eligible for leave under the WFMLA, employees must have worked for the employer at least 1000 hours in the preceding 52 weeks for at least 52 consecutive weeks. Employers of at least 50 permanent employees are covered by the WFMLA.

What kind of leave do FMLA and WFMLA provide?

As the names imply, both FMLA and WFMLA provide leave for family and medical purposes. The FMLA does not differentiate in the kinds and amounts of leave allowed. By and large, employees are eligible for a total of 12 weeks of leave during a 12-month duration for the birth or adoption of a child, the employee’s own serious health condition, or to care for a serious health condition of a parent, child or spouse.

The WFMLA, however, provides specific increments of leave. In most cases, employees are eligible for the following amounts of leave within a 12-month period: 6 weeks for the birth or adoption of a child; 2 weeks for the serious health condition of a parent, child or spouse; and 2 weeks for the employee’s own serious health condition.
What is a "serious health condition?"

The FMLA and WFMLA definitions of a "serious health condition" are similar. A serious health condition is a disabling physical or mental illness, injury, impairment or condition that involves inpatient care in a hospital, nursing home or hospice, or out-patient that requires continuing treatment or supervision by a health care provider. For example, generally, under this definition, it is unlikely that the common flu or cold would constitute a "serious health condition." However, other health condition questions keep coming up, requiring case-by-case definitions.

An employer may require an employee who is requesting leave to provide certification that the employee or the employee’s family member does, in fact, have a serious health condition. However, this certification may only ask for the following: (1) the fact that the employee or family member has a serious health condition; (2) the date that the serious health condition commenced and its probable duration; (3) the medical facts regarding the serious health condition; and, (4) if medical leave is involved, a description of the extent to which the employee is unable to perform his or her job duties. No employer can require certification stating more than this. The employer may also require the employee to obtain an opinion from a second health care provider, chosen and paid for by the employer, for the employee’s own medical condition.

How is my leave calculated when I am eligible under both the WFMLA and FMLA?

Generally, if an employee qualifies for leave under both the WFMLA and FMLA, the leave will be counted against both leave allotments. For example, in a typical childbirth situation, a birth mother will be on leave for her own serious health condition for a period of six weeks, during which she would be utilizing sick leave and concurrently using her two weeks of Wisconsin leave for serious health condition. Following that, she would be entitled to six weeks of child rearing leave under Wisconsin law. That entire 12 weeks would also be considered federal family and medical leave, since both child rearing and serious health condition are covered under federal law.

When can I substitute my sick leave or other paid leave for FMLA and WFMLA leave?

Federal law only allows substitution of leave if the employee is already completely eligible for the leave, if the employer chooses to allow it. Substitution of paid accrued vacation, personal, or medical/sick leave may be made for any (otherwise) unpaid FMLA leave needed to care for a family member or the employee's own serious health condition. An employer is not required to allow substitution of paid sick or medical leave for unpaid FMLA leave "in any situation" where the employer's uniform policy would not normally allow such paid leave. An employee, therefore, has a right to substitute paid medical/sick leave to care for a seriously ill family member only if the employer's leave plan allows paid leave to be used for that purpose.

Similarly, an employee does not have a right to substitute paid medical/sick leave for a serious health condition which is not covered by the employer's leave plan. Disability leave for the birth of a child would be considered FMLA leave for a serious health condition and counted in the 12 weeks of leave permitted under FMLA. Because the leave pursuant to a temporary disability benefit plan is not unpaid, the provision for substitution of paid leave is inapplicable. However, when the employee is utilizing FMLA leave, the employer may choose to substitute paid vacation or personal leave, including leave earned or accrued under plans allowing "paid time off," for any qualified FMLA leave.

The WFMLA is generally much more generous on the substitution of paid leave for unpaid leave. Under Wisconsin law, the Wisconsin Supreme Court has held that an employee could substitute any leave for WFMLA absences provided by the employer that had accrued to the employee. Unlike the FMLA, under the WFMLA, it is the employee’s choice whether or not to substitute his or her paid leave for the unpaid WFMLA leave. Thus, while the employee is utilizing WFMLA leave, usually the employer cannot force the employee to substitute paid leave for the unpaid leave.

Can the employer force me to substitute one type of paid leave over another?

No. Wisconsin law allows the employee to choose whether to substitute leave when the employee is on leave under the WFMLA. The employer may not require an employee to substitute leave while the employee is utilizing his or her WFMLA leave. However, the issue may be more difficult if the employer provides leave for the reason taken (e.g., care of a family member with a serious health condition), and the employee still has that leave available. Questions on this issue should generally be referred to your business agent.

If a husband and wife are employed by the same department, how much leave are they entitled to for birth or adoption or caring for a parent with a serious health condition?

FMLA provides that when a husband and wife are employed by the same employer, they are entitled to a total of only 12 weeks of leave if the leave is taken for childbirth, adoption, or caring for a parent with a serious health condition. This limitation does not apply to the other basis for taking federal leave: the employee’s own serious health condition or to care for a child or spouse with a serious health condition.

Wisconsin law has no such limitation. Therefore, regardless of whether one spouse takes the entire 12 weeks of FMLA leave, the other would still be entitled to all of his or her rights under WFMLA. For example, in the case of child rearing leave, a birth mother could take her own medical disability leave, plus six weeks of child rearing leave following the disability period. She would then have exhausted all of her state and federal leave. However, the father would still have six weeks of leave under the WFMLA. This is because there is no spouse limitation in Wisconsin law, and the father has an independent right under state law to six weeks of leave for child rearing. (He can also probably take two weeks of Wisconsin leave for the serious health condition of his wife during her recovery period.)

Where can I find answers to other family and medical leave questions?

The following are helpful web sites for finding additional information on family and medical leave:
• The Wisconsin Department of Workforce Development, Equal Rights Division site – www.dwd.state.wi.us/er/ – click on Family and Medical leave.
• Wisconsin Statutes. For the WFMLA – www.legis.state.wi.us/rsb/stats.html> – type 103.10 where it asks for the specific statute.
• The Wisconsin Administrative Rules covering WFMLA – www.legis.state.wi.us/rsb/code/dwd/dwd225.pdf.
• Although this one looks like a lot of trouble to type in, it is really a wonderful resource. It has all of the federal rules on FMLA, organized in a way that makes it very easy to locate what you need – www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/toc.htm.

Remember, the FMLA and WFMLA are wonderful benefits for most WPPA members, and it is important to know your rights. If your employer does not respect those rights, please contact your business agent.