E-Newsletter

March 2011

Changes to Family and Medical Leave in Wisconsin

Thomas P. Krukowski, Esq.

I. Ensuring Uniform State-Wide Family And Medical Leave Benefits (SB 23 AND AB 12)

Introduced on February 23, 2011, Senate Bill 23 would amend Wisconsin Statute 103.10, Family and Medical Leave, to ensure that family and medical leave benefits are uniform throughout the state by prohibiting municipalities from establishing individual or paid time off mandates that are greater than those provided through Wisconsin's family and medical leave law. If passed, local governments would not be able to enact legislation like the controversial Milwaukee Paid Sick Leave Act, which was passed in 2008 but has not been implemented due to legal challenges and is currently being reviewed by the Wisconsin Supreme Court. Proponents of SB 23 argue that this bill is necessary to help businesses be competitive within the state and to eliminate the unnecessary and costly litigation that results from such ordinances. A companion bill, Assembly Bill 12, was introduced on March 1, 2011 and its provisions mirror those of the senate bill.

The Current Wisconsin Family and Medical Leave Act (FMLA)

Under current law, an employer that employs at least 50 individuals on a permanent basis must permit an employee who has been employed for more than 52 consecutive weeks and who has worked for the employer for at least 1,000 hours during the preceding 52 weeks to take, in a 12-month period, up to two weeks of unpaid leave for the serious health condition of a covered family member, up to two weeks of unpaid leave for the employee's own serious health condition, and up to six weeks of unpaid leave for the birth or adoption of a new child. Medical leave may be taken when the employee has a serious health condition that makes the employee unable to perform the employee's employment duties. Although an employee is not entitled to receive wages or salary while taking family or medical leave, he or she may substitute other types of paid or unpaid leave provided by the employer, such as vacation or earned sick leave.

Provisions of SB 23

Because ordinances like the Milwaukee Paid Sick Leave Act seek to enhance employer-provided paid time off benefits that far exceed those provided by the state statute, especially in terms of the types of leave covered and defining as to who qualifies as a family member, this bill would prevent local governments from enacting and administering such ordinances.

Types of Leave Prevented

Employers would not be required to provide employees with leave from employment for any of the reasons listed below:

1. An employee's own mental or physical illness, injury or health condition or need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or need for preventive medical care.
   
   
2. The care of a family member with a mental or physical illness, injury or health condition who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or who needs preventive medical care. The bill defines "family member" as a spouse or domestic partner of the employee; a parent, child, sibling, including a foster sibling, brother-in-law, sister-in-law, grandparent, step-grandparent, or grandchild of an employee or of an employee's spouse or domestic partner; or any other person who is related by blood, marriage, or adoption to an employee or to an employee's spouse or domestic partner and whose close association with the employee, spouse, or domestic partner makes the person the equivalent of a family member of the employee, spouse, or domestic partner.
   
   
3. An absence necessary due to domestic abuse, sexual assault or stalking, (a) to seek medical attention or psychological or other counseling for the employee or employee's child, spouse, parent, grandparent or extended family member to recover from physical or psychological injury or disability caused by domestic or sexual violence; (b) to obtain services from a victim services organization; (c) to obtain to seek relocation due to the domestic or sexual violence or stalking; or, (d) to take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic or sexual violence.
   
   
4. To deal with any other family, medical, or health issues of the employee or of a family member.
   

Enactment for Organizations with a Collective Bargaining Agreement

If an employer currently provides the types of leave covered by this bill under a collective bargaining agreement (CBA), the bill would not eliminate those benefits until the CBA expires or is extended, modified or renewed, whichever occurs first.

II. Conforming The Wisconsin FMLA With The Federal FMLA (SB 8)

Introduced on January 21, 2011, this bill proposes changes to the Wisconsin family and medical leave law to conform that law with the provisions of the federal FMLA. The bill would amend all major elements of Wisconsin's current law, including:

1. Coverage of leave requirement
   
2. Service member family leave
   
3. Family leave for active duty of family member
   
4. Family leave for birth or placement of child
   
5. Family or medical leave for serious health condition
   
6. Intermittent leave or leave on reduced schedule
   
7. Substitution of leave
   
8. Notification and certification
   
9. Employment and benefits protection
   
10. Position on return to employment
    
11. Maintenance of health care coverage
    
12. Enforcement, including administrative proceedings and civil action for damages
    

Stay tuned for future news about this legislation.

If you have any questions regarding this or any other employment or labor law matter, contact Krukowski & Costello, S.C.'s educational services department at (414)988-8400.