Introduction to FMLA Leave 

 As an employee in Wisconsin, your employer might offer you different types of leave from work—think PTO, vacation, sick, medical leave, parental leave, bereavement, leave without pay, to name a few. If your employer has 50+ employees, you might be covered for medical- or family-related leave under state and/or federal “Family and Medical Leave Act” (FMLA) laws. State and federal FMLA laws allow covered employees to take unpaid medical and/or family leave and also protects against discrimination/retaliation for taking the medical and/or family leave. 

Am I A Covered Employee? 

 To be covered under state and/or federal FMLA laws, you need to (1) work for an employer with 50 or more employees; (2) have worked for at least 1 year for the employer.  

(3) Additionally, state and federal FMLA laws have an eligibility requirement for the number of hours worked to be covered by the state/federal FMLA law.  

• Wisconsin FMLA: Work at least 1,000 hours in the past 52 weeks (1 year) 
• Federal FMLA: Work at least 1,250 hours in the past 12 months (1 year) 

 Note: It is possible to be covered under Wisconsin FMLA laws for the number of hours worked, but not yet be eligible under Federal FMLA laws. 

What Reasons Can I Take FMLA Leave For? 

 State and federal FMLA laws allow covered employees to take medical and/or family leave relating to a “serious health condition.” A “serious health condition” is a disabling physical or mental illness; it can also be an injury, impairment, or condition involving inpatient care or outpatient care that requires continuing treatment or supervision by a health care provider.  

A “serious health condition” under the FMLA can be temporary (e.g., surgery and recovery for a broken bone), on-and-off (e.g., flaring chronic pain, migraines), continuing treatment during a set period of time (e.g., prenatal care), or a long-term diagnosis that requires ongoing treatment or supervision. 

This means state and federal FMLA leave can be for yourself, or for your spouse, child, or parent. State and federal FMLA laws also includes leave for the birth or adoption of a child. Federal FMLA leave additionally includes leave to care for immediate family, military servicemembers with serious injury or illness (military caregiver leave).  

How Much FMLA Leave Can I Take? 

If you are a covered employee with a covered reason for medical/family leave, during a 12-month period, you can take up to: 

Wisconsin FMLA:  

• 6 weeks for birth or adoption of a child 
• 2 weeks for “serious health condition” of a spouse, child, or parent 
• 2 weeks for your own “serious health condition” 

Federal FMLA: 

• 12 weeks  

However, if you are covered under both Wisconsin and federal FMLA laws, they run at the same time—meaning you do not get more than 12 weeks total FMLA leave during a 12-month period. For example, in a scenario where you are covered under both laws for your own medical condition and needed the full 12-weeks of leave, the first 2 weeks would be covered by both Wisconsin and federal FMLA laws, and then your remaining 10 weeks would covered by federal FMLA law. 

Am I Paid During FMLA Leave? 

Generally, no. The default for FMLA leave is that it is unpaid leave. However, you may be able to substitute paid leave (PTO, sick, vacation) to cover your pay during FMLA leave. 

Note: Your health insurance should continue during your FMLA leave and under the same conditions as prior for you taking FMLA leave. 

How Do I Take FMLA Leave? 

1. FMLA Leave Notice to Employer  

To the extent possible, you are expected to give reasonable notice of your need for medical and/or family leave. In situations where you have advance notice of your need for leave (e.g., planned surgery, child birth or maternity leave, ongoing treatment), you should try to give at least 30 days’ notice to your employer.  

However, in situations where you have a flaring condition and your use of FMLA leave is not in a continuous chunk of time but in bursts of hours or days (intermittent leave), then you should get FMLA leave approval for the condition and general dates covering flaring episodes during the 12-month period within which you can use up to 12-weeks total. And then during the specific episode during which you need FMLA leave, you should notify your employer using the usual process to let them know you are out (e.g., email, phone call, text message, depending on the employer). 

But where advance notice is not possible, like a medical emergency or a first-time medical event, you can notify the employer after the incident, and obtain FMLA leave to cover your leave from work for your own serious health condition. 

2. Employer Confirm FMLA Leave Eligibility 

After your have informed your employer of your need for medical and/or family leave, they should then confirm whether you are eligible for FMLA leave.  

At this point, your employer may request medical certification to confirm your or your spouse’s/child’s/parent’s serious health condition, the amount of time needed, and the dates requested for leave. You do have to provide this information and can work with the treating health care provider to get this information. 

After you submit the medical certification to the employer, the employer will confirm whether the requested leave is being covered as FMLA leave. 

Returning to Work After FMLA Leave 

Your employer may require that you get cleared by your doctor to return to work. This can be particularly relevant where your job has physical requirements (e.g., lifting, standing, driving, carrying). It may be that you need temporary or long-standing accommodations for your physical or mental health condition after your FMLA leave, as recommended by your doctor. Part of the return to work medical process could also be working with your doctor to confirm your work restrictions and request accommodation.  

 As a part of taking FMLA-protected leave, your employer must return you to your position. Though there are circumstances where an employer may not be able to return you to your exact same position. In that case, you should be returned to a job that is nearly identical. 

Further, under state and federal FMLA laws, employers are prohibited from discriminating or retaliating against employees for taking or attempting to take FMLA leave. And employers are prohibited from interfering with, restraining, or denying employees’ exercise of their FMLA rights.

What Do I Do If I Want to Talk More? 

 If you think your employer might have discriminated/retaliated against you for using or trying to use FMLA leave, or you want to discuss any other issues related to your FMLA leave, please contact us to schedule a consultation (608-257-0040).