General Counsel
FAQ - Wisconsin Family and Medical Leave Act
Q.
What if an employer's leave policy or a collective bargaining
agreement provide greater family and medical leave benefits
than the WFMLA 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 WFMLA
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 federal and Wisconsin leaves will
run concurrently when an employee is entitled to both.
An employee cannot stack WFMLA 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 WFMLA?
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
in those weeks is irrelevant. 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 WFMLA, 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 WFMLA?
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 WFMLA in this respect.
The FMLA only counts hours actually worked. Overtime
hours do count toward the FMLA total.
Q.
Under the WFMLA, 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 twelve 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 WFMLA 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 WFMLA 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 setoff the amount from the
employee's paycheck.
Q.
Does an employee need to expressly assert rights under
the WFMLA 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 WFMLA/FMLA leave?
A. Yes, if the leave meets the criteria for WFMLA/FMLA
leave, it generally is in the employer's interest to
be proactive and to designate the leave as WFMLA/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 WFMLA?
A. Eight weeks - Two weeks of medical leave and six
weeks of family leave to care for a newborn.