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This document provides a summary of the law in this area and answers questions frequently asked of attorneys in the Office of General Counsel. However, the information presented here is intended for informational purposes only and nothing in this document should be construed or relied upon as legal advice. The Office of General Counsel or your Campus Legal Counsel should be consulted regarding the specific facts and circumstances associated with any legal matter.

Revised 09/29/2010

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.

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