Employee Benefits
FMLA/WFMLA Checklist for UW HR and Benefits Staff
1. Employer becomes aware that employee is taking or plans to take leave from work for reasons that may qualify under the federal or state family and medical leave act.
2. (Recommended) Ask the employee to complete an Employee Request for Family and/or Medical Leave (UWS 80). An employee's failure to submit a written request does not relieve employer from responsibility to grant leave under federal law.3. Review
employee eligibility for FMLA/WFMLA leave, including review of entitlement already used this year.
If the employee is requesting WFMLA to care for a domestic partner or a domestic partner's parent,
the employee must complete the back side of the Employee Request for Family and/or Medical Leave (UWS 80). Click here for more information about domestic partner eligibility under the WFMLA.
4. (Required) Once eligibility is determined, give the employee a completed Notice of Eligibility and Rights & Responsibilities (UWS 81). Remember to evaluate other UW leave provisions that may be useful to the employee
5. (Recommended) Ask employee to complete the appropriate certification form for the requested leave and return it within 15 calendar days. Give HIPAA authorization form (if applicable). Do not ask for more information than the certification provides.
6. If leave will be intermittent, work with employee to reach mutually satisfactory schedule and/or to clarify the schedule of absences as much as possible and consider accommodating the employee by changing work assignments or schedule.
7. Evaluate certification form(s) when received.
8. (Required) Based on available information, notify employee by completing a Designation Notice (UWS 86) within 2 days of request that the time off will or will not be considered covered under FMLA/WFMLA. If this decision is tentative, indicate what additional information is needed.
9. When a tentative decision becomes final, is reversed based on new evidence, or is updated due to changed circumstances, notify the employee by completing another Designation Notice (UWS 86).
10. During the leave, monitor prepayment of health insurance premiums (if any) and other optional insurance premiums. If employee fails to pay his/her share of health insurance premium, coverage will lapse after 30 days. Employer must warn the employee at least 15 days in advance if this threatens to happen.
11. Monitor FMLA/WFMLA hours used.
12. (FMLA only) Ask for medical recertification as appropriate (not more often than every 30 days). This request need not be in writing.
13.(Recommended) At least two weeks in advance of the end of the leave, ask employee for a status report. Does he/she intend to return to work on schedule? Request fitness-for-duty certification if appropriate.
14. If employee clearly states that he/she does not intend to return to work, give termination/disability/COBRA information as appropriate.
15. Resolve reinstatement issues.
16. When employee returns to work, re-enroll him/her in any insurance coverages that may have lapsed. Employee has a right to any new benefits that became available during the leave.
General Concerns
Posting Requirements: Official posters explaining the federal FMLA law and the Wisconsin FMLA law should be posted in conspicuous places on your campus where other legal notices to employees are found.
Employee Handbook or Policies Requirement: An explanation of the employer's policies regarding the federal and state law must be included in the employee handbook if there is one.
A variety of changes to federal FMLA provisions were effective in January 2009, including the addition of military leave related benefits. The National Defense Authorization Act of 2010 was signed into law on October 28, 2009, and further amended military leave benefits under FMLA. See a the summary of the changes for more information. The new federal FMLA provisions also outline new forms requirements.
Some Good Advice
- First question to ask: How much leave does the employee want?
- Consider the requirements of one law at a time. Start with WFMLA since it is usually more generous.
- Remember that if both laws apply, the more generous provisions are available.
- To avoid confusion, consider leave requests one day at a time.
- Don't jump ahead to "what-if's"
OSER
Model Employee Handbook document
(ch. 724 of the Wisconsin Human Resources Handbook, attachment 6)
UW-Eau
Claire Policy
Cooperative
Extension Policy
UWSA
Benefits Website (includes links to the law and legal guidance)
In order for a situation to qualify for FMLA or WFMLA, both the reason for leave and the individual needing care must be covered under the law.
Individuals whose care is covered under FMLA/WFMLA are:
- Employee, if eligible
-
Spouse/Domestic Partner:
- Federal law includes a husband or wife, not domestic partner. If employee has a common law marriage recognized by the state [other than WI] where they were residents at the time, WI recognizes the common law marriage.
- State law includes a worker's legal husband or wife or domestic partner.
-
Child:
- Federal law: biological, adopted, stepchildren, legal wards, and children for whom the employee stands in loco parentis (under 18 or over 18 and incapable of self-care because of a physical or mental disability)
- State law: biological, adopted, stepchildren, and legal wards. It is UW System Administration's policy to include the in loco parentis relationship in the administration of WFMLA for UW System employees so if an employee stands in loco parentis to a child, the employee is eligible for a WFMLA-covered leave for the birth or placement for adoption of a child or for a child's serious health condition. If child is over 18, child must be unable to care for him/herself because of a serious health condition. Foster child not covered for purposes of placement but there is coverage if the foster child has a serious health condition. Children of a domestic partner are covered if the employee has an in loco parentis relationship to the child.
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Parent:
- Federal law: biological parent or individual who stands or stood in loco parentis to the employee when employee was under 18 or incapable of self-care. Parents-in-law not included. Rule of thumb: Did the individual have day-to-day responsibility for caring for and financially supporting the employee as a child? No biological or legal relationship is required. Employer may ask employee to document his/her family relationship with a person designated as parent.
- State law: natural parent, foster parent, treatment foster parent, adoptive parent, stepparent or legal guardian of an employee or domestic partner or an employee's spouse or domestic partner. No provision for persons who stood in loco parentis.
Reason for Leave: Birth or adoption
- Federal law: up to twelve weeks per year for the birth of a child or placement of a child for adoption or foster care. Leave may be taken before the birth or adoption if necessary and must conclude within 12 months after the event. Medical certification generally not required for this purpose but may be required if the employee takes leave for medical reasons related to pregnancy (or to care for a pregnant wife).
- State law: up to six weeks per year of family leave for birth or adoption (just one six-week period for any one child) but not for placement for foster care. Leave must begin within 16 weeks before the anticipated date of the event and the last increment of the leave must begin within 16 weeks after the event. No medical certification is required. Per UW System Administration policy, if an employee stands in loco parentis to a child, the employee may take a WFMLA-covered leave due to birth/placement for adoption. This may include the children of an employee's domestic partner if the employee has a parental/in loco parentis relationship to the child.
Reason for Leave: Serious Health Condition of the employee or a family member (i.e., child, spouse, or parent as defined in the relevant law)
- Federal law: Up to twelve weeks per year for all reasons combined for the employee or a family member's serious health condition.
- State law: Up to two weeks per year for the employee's own medical needs and two weeks per year to care for a spouse, domestic partner, parent, parent of a domestic partner or child with a serious health condition. Per UW System Administration policy, if an employee stands in loco parentis to a child, the employee may take a WFMLA-covered leave to care of the child. This may include the children of an employee's domestic partner if the employee has a parental/in loco parentis relationship to the child.
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Federal law: An
illness, injury, impairment, or physical or mental condition that involves
one of the following:
1. Overnight stay in a hospital, hospice, or residential medical care facility (and any follow-up treatment or subsequent periods of incapacity) or
2. Continuing treatment by a health care provider, including any one or more of the following:
a. A period of incapacity that lasts more than three calendar days (or relates to a previous period of incapacity that lasted that long) and required either two or more treatments by a health care provider or one treatment followed by a regimen of continuing treatment (e.g. prescription drugs). Home remedies such as bed rest, drinking plenty of fluids, or taking over-the-counter drugs do not in themselves qualify as a regimen of continuing treatment.
b. Pregnancy (any period of incapacity, or for prenatal care)
c. Chronic conditions that result in episodes of incapacity and sometimes require treatment by a health care provider
d. Permanent or long-term conditions that require medical supervision
e. Multiple treatments for restorative surgery or that are designed to prevent periods of incapacity that otherwise would be likely to last more than three calendar days (e.g., cancer treatment).
"Incapacity" means inability to work, attend school, or perform other regular daily activities.
Substance abuse may be a serious health condition that entitles the employee to leave to receive treatment; however, the FMLA entitlement does not shield the employee from disciplinary action if the employer's policies are clear and applied without discrimination [29 CFR 825.112(g)].
If the leave is for the employee's serious health condition, he or she must be unable to perform the essential functions of his/her position (within the meaning of the Americans with Disabilities Act). (29 CFR 825.115)
When a family member has a serious health condition, the employee can take leave to provide support services such as transportation, arranging for treatment, or giving psychological comfort, as well as direct physical care (29 CFR 825.116).
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State law: a disabling
physical or mental illness, injury, impairment or condition involving
either:
1. Inpatient care in a hospital, nursing home, or hospice.
2. Outpatient care that requires continuing treatment or supervision by a health care provider.
Wisconsin law does not require that the disability last a minimum time in order to qualify.
If the leave is for the employee's own serious health condition, the condition must make the employee "unable to perform his or her employment duties" [s. 103.10(4)(a), Wis. Stats.] The Wisconsin Court of Appeals interpreted "disabling" to mean a condition that makes the employee "unable to pursue an occupation or perform services for wages."
Reason for Leave: Injured Servicemember or Active Duty Family Leave
-
Federal law: Up to 26 weeks of leave in a single 12-month period to care for an eligible military servicemember who has a serious injury or illness that occurred in the line of duty on active duty (or existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the Armed Forces) for which the servicemember is undergoing medical treatment, recuperation, therapy, on outpatient status or is on the temporary disability retired list. The regular 12 week limit
applies for all FMLA leave except to provide care for the servicemember.
Up to 12 weeks of FMLA leave for “any qualifying exigency” (as defined by the DOL) if the employee’s spouse, parent, or child has been called to or are serving on active duty in the United States Armed Forces in a foreign country.
Combined Leave Total: During a single 12-month period, an eligible employee shall be entitled to a combined total of 26 work weeks of leave for the birth or adoption of a child or for the employee’s or an immediate family members serious health condition and for leave taken under the Active Duty Family Leave.
- There are no military leave provisions under WFMLA. If an employee wants to take FMLA leave due to a qualifying exigency, the employee must qualify for FMLA.
See detailed information regarding the military leave provisions under FMLA in the summary of FMLA changes.
Employee's responsibility for notice
The requirements for initial notice to the employer are quite minimal. Notice is deemed to have been given as soon as the employee alerts the employer that time off is needed and gives a reason that may be covered under FMLA. The notice may be verbal, so long as it is sufficient to alert the employer that FMLA may be involved. The notice must include enough information about the nature of the condition to show that FMLA may apply, and the anticipated time and duration of the leave. An employer may also recommend that an employee complete an Employee Request for Family and/or Medical Leave (UWS 80). If the employee is taking leave to care for a seriously ill domestic partner or the domestic partner's parent under WFMLA, a domestic partner affidavit (UWS 50) or evidence that they registered the partnership with the Register of Deeds in the county in which they reside is required.
The employer may be responsible for seeking more information. For example, a pattern of absences combined with health complaints may signal the presence of a chronic condition. However, the employer is not responsible for discovering an FMLA-qualifying situation if the employee does not reveal it.
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Federal law: Employees
must provide at least 30 days advance notice if the need is foreseeable,
otherwise as soon as practicable (court cases suggest within 2 business
days of when the need becomes apparent), and whenever the anticipated
schedule changes. In an emergency a spouse or other spokesperson may
give the notice.
If the employee knows his/her obligation to give notice but fails to do so and has no reasonable excuse, the employer may delay the leave.
The employee is expected to work with the employer to arrive at a schedule of treatments that suit both the employer and the employee, if the employee is using leave intermittently. The employer can take the initiative to discuss the schedule with the employee. However, the health care provider must approve the final decision.
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State law: Employees
are required to give "reasonable notice." No notice is required
in emergencies. For foreseeable leaves, employee need not give more notice
than is required for other absences, e.g. vacation. Employer may not
require written notice unless the same requirement is in a written policy
that applies to all employees (prior notice cannot be required in emergencies).
Employees must make a reasonable effort to schedule medical treatments so as not to disrupt the employer's operations. Under rules of the Department of Workforce Development, this simply means that the employee must, as soon as practicable, give the employer a schedule of absences that is definite enough to allow the employer to schedule replacement employees, if needed, to cover the absence [s. DWD 225.02(5), Wis.Admin.Code]. This schedule can be precluded by the need for treatment.
The employer can deny the leave if the employee "substantially fails" to give notice [s. DWD 225.02(8), Wis.Admin.Code].
Automatic Triggers You may want to notify the employee automatically in the following situations that time off may be protected under FMLA/WFMLA:
- Employee takes three consecutive days off from work and requires continuing or repeated medical care
- Employee is off work for three days or more due to worker's comp injury
- Employee requires follow-up treatment for a previous illness or injury that was a serious health condition
- Employee has occasional absences due to a chronic condition
- Employee needs time off due to the illness of a family member
- Employee uses any type of leave for qualifying reasons (under the rules of the Department of Workforce Development, the employer may elect to deem use of any leave for a serious health condition to be use of the WFMLA entitlement, even though the employee has not made a formal request (s. DWD 225.01(6) through (10), Wis.Admin.Code)).
Notice to Employee Requesting Leave under the Family and Medical Leave Act
This notice must be provided to an employee within five business days, when feasible, of an employee request for leave that may be covered under the state or federal FMLA, or from when an employer learns that the leave was taken for an FMLA-qualifying purpose. The notice must be given in the language in which the employee is literate.
Notice of Eligibility and Rights & Responsibilities (UWS 81)
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Federal law:
- Has the employee worked for the state for 12 months or more (time need not be consecutive)? Any week during which the employee was on payroll for any part of the week, or was receiving benefits, e.g., health insurance coverage, counts for this purpose. The summer months count for nine-month employees.
- Has the employee worked for the state for at least 1,250 hours during the12-month period prior to the date the requested leave would begin? The 1,250 hours must be hours actually worked, not including vacation or sick leave. Full-time teachers are assumed to meet this standard unless the employer can prove otherwise.
- Military service that interrupted state employment is counted as if the employee had been at work for both of the above criteria.
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State law:
- Has the employee been employed for 52 consecutive weeks (need not be immediately prior to date of request)? The period of employment can include approved leaves of absence, military service, worker's compensation temporary disability, temporary layoffs, or permanent layoffs if the employee is reinstated.
- Has the employee been paid (including vacation, sick leave, or other) for 1,000 hours within the 52 weeks prior to the request for FMLA?
- State employees retain seniority and other benefits when absent due to military service (s. 230.32(1), Wis.Stats.)
Leave Remaining:
Has the employee used any FMLA and/or WFMLA leave during the current year (calendar year for classified employees; fiscal year for unclassified employees)?
| Type |
Used |
Through (date) |
Remaining |
|
| WFMLA |
2 weeks per year for personal illness |
|||
| 2 weeks per year to care for family member with serious health condition |
||||
| 6 weeks per child for birth/adoption |
||||
| FMLA |
12 weeks per year for any purpose (leave for child care must end within 12 months after the birth or placement) |
|||
| FMLA | 26 weeks per year to care for a servicemember who has been injured or become ill due to active duty. |
Paid holidays, if they fall during a period of FMLA leave, count toward the employee's FMLA entitlement. FMLA cannot be charged during whole weeks where the employee is not scheduled to work. The summer, for academic year employees, does not use up the FMLA entitlement [29 CFR 825.200(f)], but the winter break does count, unless the employee has made specific arrangements to work part-time or full-time during those weeks.
Other UW leave provisions may provide leave when none is available under FMLA or WFMLA. For example, classified staff are permitted to use sick leave for a medical appointment even though there is no serious health condition present, and they are guaranteed at least six months' maternity/paternity leave upon request. Where the employee uses paid leave to cover FMLA/WFMLA absences, the paid leave runs concurrently with the FMLA/WFMLA entitlement.
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Unclassified employees
- Sick Leave. Sick leave may be used per s. UWS 19, Wis.Admin.Code and UPG 10.04 for:
- Vacation. Twelve-month academic staff earn vacation which may be used to cover absences of any kind with the consent of the supervisor. Banked vacation (ALRA) may also be used with the consent of the supervisor.
- Unpaid leave of absence. An unclassified employee may apply for a leave of absence under the procedures of his or her institution. Probationary employees may request extension of their probation period because of responsibilities related to "childbirth or adoption, significant responsibilities with respect to elder or dependent care obligations, disability or chronic illness..." [ss. UWS 3.04(3) and 10.03(2)(a)3., Wis.Admin.Code].
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Maternity/paternity
leave. Regent Policy 73-10 states in part, "A teaching or non-teaching
staff member may opt to continue her normal duties through pregnancy
using accumulated sick leave as needed for prenatal, delivery and postdelivery
care while physically unable to perform her duties. Thereafter, she
may take additional consecutive days or the remainder of the semester
as unpaid leave at her option. .... In the semester after the one in
which delivery occurs, irrespective of her medical condition, the staff
member shall be granted, upon her request, leave without pay for the
semester." UW-Madison Personnel Policies extend the opportunity
for unpaid leave to twelve-month employees and to fathers and adoptive
parents.
- Classified Employees. The information below applies to non-represented permanent and project employees. Collective bargaining agreements often include different or more specific provisions. Always check the current CBA when counseling a represented employee.
1. Absence due to personal illness, injury, disability, pregnancy or adoption;
2. Attendance upon an immediate family member whose health or medical condition requires the employee's direct care; and
3. The death of an immediate family member.
There is no specific time limit on the amount of sick leave that may be used.
"Immediate family member" includes domestic partners as well as grandparents and other extended family members. See UPG 10.01 for definitions.
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Sick
Leave may be used per s. ER 18.03(4), Wis.Admin.Code:
1. For personal illnesses, bodily injuries, maternity, or exposure to contagious disease where the employee is confined, is unable to perform assigned duties, or where working would jeopardize the employee's health or recovery.
2. For immediate family or personal medical or dental appointments which cannot be scheduled at times other than during work hours.
3. For temporary emergency medical care of ill or injured members of the immediate family for a limited period of time to permit the employee to make other arrangements. Generally limited to 5 days for any one illness or injury, but appointing authority may permit a longer period in unusual circumstances.
4. For a death in the immediate family (generally limited to 3 work days, plus up to 4 work days for required travel time, but appointing authority may grant more time in unusual circumstances).
"Immediate family," for purposes of these uses of sick leave, is not defined in statute or rule. Collective bargaining agreements often specify certain family members.
- Vacation and sabbatical leave (banked vacation hours) may be used at the employee's request, subject to the needs of the service.
- Maternity leave: up to six months mandatory upon employee's request; appointing authority may extend for up to another six months. Employee may use sick leave if she meets one of the conditions for use of sick leave explained above; she may use vacation, sabbatical, compensatory time, or unpaid leave [s. ER 18.14(2)(d), Wis.Admin.Code].
- Paternity, adoption, and pre-adoptive foster care leave: up to six months mandatory upon employee's request; appointing authority may extend for up to another six months. Employee may not use sick leave but may use other types of paid or unpaid leave [s. ER 18.14(2)(e), Wis.Admin.Code]. If the employee is eligible for a WFMLA-covered leave, the employee is eligible for use sick leave during the portion of the leave covered by WFMLA.
- Unpaid leave of absence: Permanent employees may request an unpaid leave of up to one year, renewable for up to two additional years. The appointing authority may grant the leave if it would not be prejudicial to the interests of the state [s. ER 18.14(2), Wis.Admin.Code].
- See also: UWSA leave benefits website
Medical and Military Certification Forms
- Federal law: Employer may require the employee to submit medical certification of the employee's or family member's condition. Fill out Section 1 (Employer Section) for an certification form that you give to the employee. HIPAA rules may prevent you from asking a health provider directly. Employee must be allowed at least 15 days to submit the certification. The employer can obtain a second opinion, at the employer's expense. Employer may request recertification at reasonable intervals (not more often than every 30 days).
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State law: Employer
may require certification from a health care provider of the following
information ONLY:
1. That the employee, child, spouse, domestic partner, parent or the domestic partner's parent has a serious health condition;
2. The date the serious health condition commenced and its probable duration;
3. Within the knowledge of the health care provider, the medical facts regarding the serious health condition.
4. If the leave is requested for the employee's own medical condition, the extent to which the employee is unable to perform his or her employment duties.
The employer can require the employee to get a second opinion from a provider chosen and paid for by the employer.
Certification by Health Care Provider for Employee's Serious Health Condition (UWS 82)
Certification by Health Care Provider for Family Member's Serious Health Condition (UWS 83)
Certification of Qualifying Exigency for Military Family Leave (UWS 84)
Certification of Serious Injury or Illness of Covered Servicemember for Military Leave (UWS 85)
HIPAA Authorization Form to facilitate release of medical information to the employer
Intermittent leave. Employees need not take FMLA/WFMLA leave in one continuous period: they can request a reduced schedule or intermittent periods of leave while continuing to work part-time or intermittently. Employees who are exempt from FLSA can charge leave for less than a full day without losing exempt status.
- Federal law: the employer must grant intermittent leave that is medically necessary based on the serious health condition of the employee or a family member. The shortest increment of leave available cannot be longer than one hour. The employer may refuse to approve intermittent leave for birth or adoption (but if the leave is also covered under WFMLA, the employee has a right to it). All leave for the birth, adoption, or placement of a child must end within 12 months after the event.
- State law: any WFMLA leave can be taken in increments so long as the employee gives proper notice. Proper notice simply means that the employee informs the employer as soon as reasonably possible of the need for the leave, and provides the employer with a schedule of proposed absences that is definite enough to allow the employer to schedule replacements if needed. The shortest increment of leave available cannot be longer than the increment that the employer allows for other non-emergency leaves. The last period of intermittent leave for the birth or adoption of a child must begin within 16 weeks after the event.
When an employee foresees the need for FMLA/WFMLA leave, he or she is required to try to schedule the leave so as to avoid disrupting the workplace. Giving the employee an alternate schedule or position during the leave may be a good way to meet both employer's and employee's needs. Be aware that the employee may have a right to accommodation under the Americans with Disabilities Act (ADA). If the employee is on worker's compensation, assignment to light duty may have an impact on his or her benefit.
- UWSA Policy on Reasonable Accommodations
- Federal law: Subject to collective bargaining agreements, when an employee needs intermittent leave or a reduced schedule for an FMLA-qualifying reason, the employer can require the employee to transfer temporarily to an available alternate position for which the employee is qualified and that better suits the employee's schedule (29 CFR 825.204). The alternate position must have equivalent pay and benefits but need not have the same duties. The employer must not use this tactic to discourage the employee from taking leave under FMLA. When the employee is ready to return to his/her original work schedule, he/she must be given the same position as before the leave, or an equivalent position. An equivalent position has substantially the same duties, responsibilities, and status as well as the same pay, benefits, and working conditions.
- State law: WFMLA statute does not prevent an employer and an employee with a serious health condition from mutually agreeing on alternative employment while the serious health condition lasts [s. 103.10(10), Wis. Stats.]. (Collective bargaining agreements or institutional policies may limit this option.)
Types of paid leave/what can be used
- Federal law: Employees may use vacation or personal holidays (but not sick leave) for birth and adoption. In addition to vacation and personal holidays, employees may use sick leave for the employee's medical condition or to care for a family member, but only if the employer's policy would normally permit use of sick leave. If the employee takes compensatory time, those hours do not count against the FMLA entitlement. Employers may require that employees use paid leave if it is available before taking unpaid leave.
- State law: An employee may use any type of leave that he/she has accrued, including sick leave, but may not be required to use paid leave. If the employer elects, any use of leave for a WFMLA-qualifying purpose may be deemed to be leave taken under WFMLA, even if the employee has not made a formal request.
Evaluate the medical certification
If you requested and received a medical certification, don't assume that it says the right things. The certification is not adequate if it indicates that:
- The patient does not have a serious health condition;
- The patient was not seen by a health care provider;
- The patient/employee is able to perform the duties of his/her position;
- The patient has not been incapacitated for more than three consecutive days (federal law);
- The patient does not have qualified continuing treatment (federal law); or
- Continuing treatment consists of bed rest, drinking fluids, taking of non prescription drugs, or other activities that could be initiated without visiting a health care provider.
The certification is adequate if it indicates that:
- The employee or family member is unable to perform the essential functions of his/her job or otherwise perform other regular daily activities due to a serious health condition AND:
- There been continuing treatment by a health care provider involving a period of incapacity for more than three consecutive calendar days (federal law);
- There was inpatient hospitalization and a period of incapacity (inability to work, etc.) or subsequent treatment;
- The requested leave is needed for multiple treatments by a health care provider (at least two visits to a health care provider or one visit to a health care provider and a regimen of continuing treatment (federal law); or
- Two visits to a health care provider (state law);
- The period of incapacity is linked either to pregnancy or prenatal care or to a chronic serious health condition that requires periodic visits to a health care provider over an extended period and which may cause an episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy);
- The period of incapacity is due to a permanent or long-term due condition for which treatment may not be effective (e.g., Alzheimer's disease, severe stroke, terminal cancer); OR
- The leave is needed receive treatments for a condition which would result in an incapacity of more than three days if not treated (e.g., chemotherapy, radiation, physical therapy for severe arthritis, or dialysis).
Treatments for serious health conditions include examinations to determine if a serious health condition exists provided there is a regimen of continuing treatment and an incapacity of more than three consecutive calendar days which follows such an examination (federal law). Routine physical, dental or eye examinations are not considered serious health conditions. Generally, a common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraines, routine dental or orthodontia problems and periodontal disease are not serious health conditions unless they involve an incapacity of more than three consecutive calendar days that also involves visits to a health care provider and/or qualifying treatment.
Health Insurance Premium Issues
-
Federal law:
- Employer contributions to health insurance premiums must continue under the same conditions as if the employee had continued to work. This obligation ends if and when the employee states that he/she does not intend to return to work.
- The employee is eligible for Dual Choice and any other changes in the plan that occur during the leave. He/she is eligible to switch to family coverage upon the birth or adoption of a child.
- If the employee takes paid leave, employee premiums (if any) are collected from payroll as usual. If the employee takes unpaid leave, employer premiums continue for the duration of the FMLA leave, but the employee must pre-pay his or her share of premiums. Coverage can lapse if the employee is 30 days late with a premium payment, but only if the employer gives a 15-day warning.
- Any employee on unpaid leave, regardless of FMLA status, normally receives the employer contribution to health insurance for three months as provided in s. 40.05(4)(a)3., Wis. Stats. (or for the entire period of disability if covered under temporary workers compensation). An employee on FMLA may receive more than three months of employer-paid premiums if, for example, the twelve weeks of FMLA leave is taken at the end of the year and the employee qualifies for and takes another twelve weeks of FMLA leave at the beginning of the next year. An employee on a reduced schedule who normally would receive the less-than-half-time employer contribution to health insurance must be given the full contribution if the reduced schedule is due to FMLA leave.
- If the employee does not return to work after the leave, the employer may recover premiums it paid over and above what it would have paid in a non-FMLA leave situation (unless the failure to return was caused by the serious health condition or other circumstances beyond the employee's control).
- State law is substantially the same as federal law
Unfortunately, tracking hours of intermittent or unscheduled leave that are covered by FMLA and/or WFMLA entitlement is very difficult. The front-line supervisor may be the best person to collect this information. Periods of scheduled, full-time leave are more straightforward but still need to be recorded.
Currently, institutions must devise their own methods of tracking FMLA leave. Here are two sample tracking forms adapted from the Indiana University website for classified and unclassified employees.
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Federal law:
- Employer may have a uniformly-applied policy or practice that requires all similarly- situated employees (i.e., same occupation, same serious health condition) who take leave for such conditions to obtain and present certification from the employee's health care provider that the employee is able to resume work.
- The certification must be job-related and must address only the condition for which the leave was granted (29 CFR 825.310).
- The policy must be stated in the Employee Handbook, and the employee must be informed of the requirement as part of the initial notice.
- Fitness-for-duty certifications may not be required of employees on intermittent leave.
- Provisions of applicable collective bargaining agreement govern.
To avoid FMLA violations, employers need to keep the medical certification requirement separate from the requirement that the employee be able to perform all essential job functions on the return from FMLA leave. Employers should not deny or delay an employee's return to work because the certification, while simply stating the employee was able to return to work, failed to state that the employee's was able to return to work without restriction, or similar language.
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Federal law
- When the leave ends, the employee must be returned to his or her original job, or to an equivalent job with equivalent pay (including shift differential and customary overtime, if any), benefits, and other terms and conditions of employment. An equivalent position must entail the same skill, effort, responsibility, and authority as the original position (29 CFR 825.214).
- If the employee is unable to perform the essential duties of the position due to a physical or mental condition, he or she is not entitled to restoration under FMLA but may have rights under the Americans with Disabilities Act.
- If the job requires a certification or license, the employee must be given a reasonable opportunity to secure the proper credentials.
- The employee on leave has no greater rights than he/she would have had without the leave. Thus if the employee would have been laid off or transferred under normal circumstances, or if the job was restructured during the leave, he or she does not have a right to the original job.
- An employee cannot be forced to use more leave than he or she needs [29 CFR 825.312(e)]. If the employee is able to return to work earlier than anticipated, he or she must be returned to his/her original position, or an equivalent position, upon two business days' notice.
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State law:
- When the leave ends, the employee must be returned to his or her previous position, if it is vacant, or otherwise to a position having the same pay, benefits, hours, and other terms and conditions of employment. The duties of the equivalent position can be different but they must entail the same responsibility, status, and authority.
- If the employee decides to return to work early, the employer must reinstate him or her as soon as reasonably possible, but not later than the scheduled end of the leave.
- If the employee's appointment ends during the leave, the employee has no reinstatement rights. For example, if an unclassified employee's contract is not renewed, he or she is not entitled to job restoration or continuation of benefits after the contract end date. The decision not to renew, of course, must not be related to the leave itself.
This document was last revised on August 23, 2010
