By: Associate Professor Alexia Kulwiec, JD
I recently had the opportunity to conduct a two-day training at the UW School for Workers regarding the Family Medical Leave Act, or FMLA. This training provided participants the opportunity to dive deeper into issues concerning the FMLA. I noticed that many of the participants’ questions were common to all, and decided to take the opportunity to publicly answer just a few of the common questions. Most folks understand the basics: Workers employed by employers with 50 or more employees, and all public sector workers, are entitled to leave for care for themselves when they have a serious health condition, a family member has a serious health condition, or for the birth / adoption / fostering of a child. Under federal law, workers are entitled to twelve weeks leave, while under Wisconsin state law, workers may only take 6 weeks for birth, adoption, or bringing in a foster child, two weeks to care for themselves, and two weeks to care for a family member. Workers are entitled to take leave under the law that benefits them and can let the employer know which law they want applied.
Beyond the basics, of course, the devil is in the details. While Wisconsin FMLA leave may be less than federal, it includes more family members: domestic partner, child, siblings, siblings-in- law, parents and in-laws, and grandparents including step-grandparents. Federal law only allows time for a worker to care for self, parent, spouse, or child. Wisconsin law also permits the employee, rather than the employer, to determine whether to use paid time off when taking leave or take unpaid time, while under federal law the employer may require the use of paid time off. Workers are entitled to insist on the better of federal law v. Wisconsin law.
Another issue that is becoming more common is workers caring for a child not their own. In general, the rule is that if that child is in the worker’s home and dependent on the worker, the worker is entitled to FMLA time to care for that child. Another common detail for workers to keep in mind is that if on FMLA (as opposed to other time off like workers’ compensation), the employer is required to keep the employee on medical leave while the worker is on FMLA time. The employer can require the employee to pay the normal co-premium, but the workers and family members can then continue health insurance coverage. I also receive a lot of questions regarding fitness for duty: employers can require fitness for duty certification but only if used consistently for any leave, and only for the the particular health condition that led to the leave. Speaking of physician’s involvement, the employer may seek a second opinion on whether FMLA certification is appropriate, but may not require the employee to obtain treatment from an employer physician. In addition, the employer is not entitled to to obtain a second opinion on the employees’ fitness to return to duty. One last common concern: Under federal law, employers are not required to offer parental leave in increments (i.e., two weeks, or a few hours at a time). Under Wisconsin law, however, employees can take parental leave in increments but are limited to a total of six weeks leave.
Please remember that the UW-Madison School for Workers can do customized trainings on many topics, including the FMLA. Interested workers can also keep in mind that the School for Workers will likely present this class again, and encourage students to attend next Spring’s class. In the meantime, check out the current offerings of the UW School for Workers here.