As of June 29, 2009, the Wisconsin Family and Medical Leave Act (WFMLA) includes protecting employees that need leave for a domestic partner. The WFMLA is at sec. 103.10 of the Wisconsin Statutes. This law provides additional protections not found in the Federal FMLA.
Wisconsin has a provision for domestic partners to register to qualify for other benefits, but this is not required for WFMLA coverage.
The law provides, among other protections, up to two weeks of leave for an employee to care for the domestic partner’s serious health condition, but not for a child of the domestic partner. To be covered, the employee must work for a pubic employer or a private employer that employs 50 or more permanent employees. Also, the employee must have been employed for 52 consecutive weeks or more and have worked at least 1,000 hours in the preceding 52 week period.
Failure to provide the requested leave is a violation of the WFMLA, as is failure to restore an employee to his or her position or an equivalent one following WFMLA leave.
Violations of the WFMLA are enforced by the Wisconsin Equal Rights Division by filing a complaint within 30 days of the violation or when the employee reasonably learns of the violation, whichever is later.
Disclaimer. The information in this and all other posts on this website are not meant as legal advice, but as informative, educational material of a general nature. Legal advice depends on the particular facts and circumstances, and can only be given upon a discussion of the facts and circumstances between an attorney and client. Do note rely on this information when making legal decisions, and you should consider seeking the advice of a competent attorney licensed to practice law in your jurisdiction.
The Seventh Circuit Court of Appeals, a Federal court overseeing the Federal trial courts in Wisconsin, Illinois and Indiana, confirmed a trial court’s decision that threw out an employee’s claim that the employer violated her FMLA rights when it terminated her employment when she was on leave for a serious health condition. See Brown v. Automotive Compenents Holdings LLC, 7th Cir., Sept. 8, 2010. The employer terminated her employment because she did not comply with the employer’s leave policies which required her to submit a particular medical form within a specific period of time. The employee was actually on medical leave that expired, and she needed to extend the leave to cover additional time. The employee did not respond to the employer’s requests, and in fact did not pick up certified letters the employer sent her that requested her to comply with its policies. The Federal court found that the employer’s policies did not conflict with the FMLA, so the employer could terminate the employee for not complying with these policies. Moral of the story for employees is that you must be aware of your employer’s policies and comply with them if they do not contradict the FMLA. Also, don’t ignore certified mail from your employer when you are on leave. By complying with the employer’s request for a medical certification, which it appeared the employee could have done, she would likely have saved her job at least at this juncture. Perhaps in this case, the employee who suffered from depression at the time may have found it difficult to respond at all due to the depression, but that issue did not seem to be a factor in the arguments.
When an employee takes leave for his or her own serious health condition, and the employer and employee are covered by the Federal Family and Medical Leave Act, an employer may require a certificate from the employee that says the employee can return to work. However, the employer generally may only require a certificate that says the employee is able to work and not require additional certifications unless the employer has a reasonable, objective belief that the employee’s health condition will not permit the employee to peform the essential job requirements or that the employee can’t do so without posing a substantial risk of harm to the safety or welfare of the employee or others. Any such inquiry must be related to the particular job and for a legitimate business necessity. The employer must also generally require this of all employees returning to work after medical leave. And the employer may not require such a certification if the reason for the FMLA leave was to care for another. State law and collective bargaining agreement may modify the requirements and protections.
An employer’s demand of an employee to provide a doctor’s medical excuse for every time the employee was absent due to a serious health condition for which the employee already provided medical certification under the Family Medical Leave Act violated that employee’s rights because it was an act that would discourage one from taking FMLA leave. The U.S. District Court for the Northern District of Illinois came to this decision on January 6, 2010, in the case of Jackson v. Jernberg Industries, Inc. This decision affirms that employees taking FMLA qualifying leave on an intermitant basis (not a consecutive block of time) generally cannot be required to go to the doctor everytime the employee needs to take a day off work because of the limiting effects of the serious health condition just to get a doctor’s excuse so long as the employee has provided medical certification of the need for FMLA leave on an intermitant basis. The court noted that an exception may apply where there is evidence that an employee may be abusing FMLA leave, but that was not an issue in this case.