THE WISCONSIN FAMILY AND MEDICAL LEAVE ACT AND THE FEDERAL FAMILY AND MEDICAL LEAVE ACT – WHAT IS THE DIFFERENCE?

This month we observe the 20th anniversary of the enactment of the federal Family and Medical Leave Act (FMLA). That law extended, to employees throughout the United States, FMLA leave rights that Wisconsin employees had already enjoyed for five years under the Wisconsin FMLA.

A Wisconsin employee can choose to utilize the Wisconsin FMLA whenever it provides him or her with greater FMLA benefits than does federal FMLA. And there are many important ways in which the Wisconsin FMLA provides greater rights. For example, under both laws, leave is unpaid except that employees can substitute accrued leave subject to certain rules. Those rules are much more employee-friendly under the Wisconsin FMLA.

The Wisconsin FMLA gives the employee much greater opportunities for substitution of paid accrued leave for otherwise unpaid FMLA leave. The Wisconsin law allows the employee to substitute any type of accrued (i.e. banked) paid leave for any type of FMLA leave, even if the reason for the WFMLA leave would not otherwise qualify for the paid leave. For example, if you are taking Wisconsin FMLA leave because you are adopting a child, you are entitled to substitute paid sick leave, even if the sick leave plan covers only your own illness.

Moreover, the decision to substitute under Wisconsin FMLA belongs to the employee alone.

In contrast, the federal FMLA gives the employer much greater control over substitution. The employer may require you to substitute even if you would prefer to take the FMLA leave unpaid. The federal FMLA doesn’t permit you to substitute sick leave for new child FMLA leave at all. Any other substitution has to conform to the paid leave plan’s conditions.

Being able to substitute paid leave can make the difference for many employees in deciding whether they can afford to take leave it all.

If you want to use the more flexible substitution rules of the Wisconsin FMLA, you will need to indicate to your employer that you are taking your leave under the Wisconsin law.

Some leave rights are only available under the Wisconsin FMLA. For example, part-time employees who are paid for at least 1,000 hours a year (about 20 hours a week), including vacation, sick pay, etc., but actually work less than 1,250 hours a year (about 25 hours a week) qualify for leave under Wisconsin FMLA, but not federal FMLA. An employee may take leave only under the Wisconsin law to care for a spouse’s parents, and only the Wisconsin FMLA permits an employee in a domestic-partner relationship to take leave to care for his or her partner or the partner’s parents.

More information about the differences between Wisconsin and federal FMLA and your rights under both is contained in our Handbook for Wisconsin Workers on Family Medical Leave Act Rights. If you have questions on whether you have been denied your rights under Wisconsin or federal FMLA, Hawks Quindel’s attorneys can review the facts of your case and provide you with guidance.