FMLA

Coordinating Benefits under the Wisconsin and Federal FMLA Laws

The Wisconsin Family and Medical Leave Act (FMLA) and the Federal FMLA are similar in many respects, but have different eligibility requirements and provide different benefits. Determining eligibility and scope of benefits can be a challenging process.
The following rules of thumb for coordinating the WFMLA and FMLA are helpful:

  • An employee must meet the eligibility requirements under either law to be covered under that law.
  • An employee who meets both the WFMLA and FMLA threshold requirements is eligible for both WFMLA and FMLA benefits. The FMLA does not supersede state laws (such as the WFMLA) that provide more generous family and medical leave benefits. Therefore, when an employee is entitled to leave under both laws, apply the law which provides the greater (more generous) leave rights.

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Reducing Risk and Abuse of FMLA Leave

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1. Attendance policies and procedures. Adopt an attendance policy that clearly articulates your attendance expectations and the required procedures for requesting and reporting expected and unexpected absences, including detailed call in procedures. It is important to consistently enforce the policy and procedures for all employees taking any type of sick leave, whether or not FMLA covered. 

2. Address attendance and performance issues. Do not procrastinate on addressing attendance and performance issues. If an employee is not meeting your legitimate expectations, it is critical that you talk with the employee AT THAT TIME about the issue and have the employee sign off on documentation indicating that the issue was presented. In Lois’s situation, had the employer addressed and documented her attendance and performance problems before the FMLA issue was raised, the employer would be in a much stronger position to address future issues and avoid a claim of retaliation.

3. Maintain confidentiality. The FMLA and disability laws generally require employers to maintain confidentiality regarding an employee’s status and leaves. Although an employee’s chronic absences or modified schedule may cause “rumblings” amongst co-workers, it is important not to disclose medical information. Although it may seem like a good idea to explain to staff what the employee’s issue is, this is generally not acceptable under the laws. Tell co-workers that personnel matters are not discussed with staff and thank them for their service.

4. Require medical certifications. Employers should consistently require medical certifications of the need for FMLA leave. If the certification form is incomplete or unclear, employers may ask the employee to return the form to the physician or may have a company physician contact the employee’s physician for clarification. Under the current rules, employers may not directly contact the employee’s physician. 

5. Require recertifications when appropriate. Employers are able to ask for recertifications of conditions qualifying for leave generally every 30 days. However, if the original certification states that the need for leave will last more than 30 days, the employer must wait whatever length of time is indicated to obtain recertification. Employers may require a recertification earlier than every 30 days if the employee requests an extension of the leave, if circumstances change significantly, or if the employers learns of information casting doubt on the continued need for leave. For instance, if an original certification estimated that intermittent leave would be needed once or twice per month, the employer may seek recertification if the employee is subsequently averaging two absences per week. 

6. Conditionally designate leave as FMLA leave. When you have information that an employee’s absence is related to a serious health condition, designate the absence as FMLA covered pending obtaining further information through the medical FMLA certification process. In addition, it is at times advisable to proactively request a medical certification from an employee who has had multiple absences in order to assess whether those absences may be covered by FMLA leave. 

7. Communicate clearly about FMLA leave. Many FMLA lawsuits stem from either unclear communication or a total lack of communication about FMLA leave. It is critical to keep employees apprised of their rights and their obligations and to ensure that your communications are taking into consideration issues under worker’s compensation and disability laws. 

8. Keep your policies, procedures and form up to date. The latest change under the federal FMLA is the addition of military-related FMLA, which became effective in January of 2008. We are also expecting new final FMLA rules from the Department of Labor at the end of 2008 that will significantly affect the FMLA notice requirements. If you have not had your FMLA documents updated recently, it is important to do so.

While there is no “magic pill” to make FMLA administration an easy task, consistently implementing these steps will lower your risk of FMLA abuse and liability. 

The federal and Wisconsin Family and Medical Leave Acts (FMLAs) were enacted for the valid purpose of providing employees with unpaid, job protected leave for specific medical and family reasons. When enacted, the laws were intended to provide employees with leave for serious conditions that might extend beyond the employer’s sick leave policies or that last more than few days. However, the laws also permit the use of FMLA leave on an intermittent basis, meaning that employees may take small increments of leave (one hour or even less, depending on the employer’s policies) throughout the year without advance notice. Several issues under the FMLAs, including intermittent leave, have created frustrations for many employers. 

 

Consider the following example: Lois, a second year employee, has had a spotty attendance record. She has admitted to several tardies due to oversleeping and traffic problems. Lois has also had below average productivity and has shown a lack of teamwork. When Lois has another absence, you prepare a written warning on attendance and meet with her for a disciplinary meeting. Lois tells you in this meeting that she has chronic migraine headaches, has missed work several times due to migraines, and will be providing you with medical certification for intermittent FMLA leave. Once Lois provides the certification, she is generally entitled to 12 weeks of job protected leave (again, in one hour or even smaller increments). Although Lois’s performance continues to be spotty, you are now concerned that if you address these issues, Lois will believe she is being punished because of her FMLA leave. Lois’s co-workers are frustrated and you now feel unable to address the legitimate performance issues.

Although the FMLAs give employees significant leeway in taking leave, there are steps employers can take to more effectively enforce their attendance policies and reduce risk under the FMLA.

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Eligibility for WFMLA and FMLA Benefits

There are two requirements to qualify for WFMLA coverage:

  • An employee must have been employed by the same employer for more than 52 consecutive weeks at any time during the employee's employment with the employer.
  • An employee must have worked for the employer for at least 1000 hours during the 52-week period preceding the commencement of the leave.

 

There are two requirements to qualify for FMLA coverage:

  • An employee must have been employed by the same employer for at least 12 months.
  • An employee must have been employed for at least 1250 hours of service during the 12- month period preceding the commencement of the leave.

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WFMLA and FMLA Benefits

The WFMLA requires that an eligible employee receive in any 12-month period:

  • up to 6 weeks of unpaid leave for the birth or adoption of a child.
  • up to 2 weeks of unpaid leave for the care of a child, spouse, or parent with a serious health condition.
  • up to 2 weeks of unpaid leave for the employee's own serious health condition.

 

The FMLA requires that an eligible employee receive in any 12-month period up to 12 weeks of unpaid leave:

  • for the birth of a child and to care for the newborn child.
  • for the placement of a child with the employee for adoption or for foster care.
  • for the care of a child, spouse, or parent with a serious health condition.
  • for the employee's own serious health condition.

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Employee's Notice of Leave to the Employer

  • WFMLA: Advance notice of leave, if possible, in a reasonable and practicable manner.
  • FMLA: Thirty days notice of leave where the need for leave is foreseeable and notice is practicable (e.g., maternity leave).

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Designation of Leave

The employer is responsible for designating leave under FMLA/WFMLA, promptly notifying the employee of the designation, and further explaining the employee's rights under the law. An employer that does not have sufficient information on which to make the determination should consult further with the employee.

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Medical Certification

  • WFMLA: An employer may require certification of the health condition of the employee or the affected family member. The request for certification is limited in scope to certain statutorily prescribed questions. Those questions are:
  • Whether the person has a serious health condition.
  • The date the condition began and how long it is expected to last.
  • The provider's knowledge of the medical facts about the serious health condition.
  • If the employee is requesting medical leave, the extent to which the employee can or cannot perform the job.
  • FMLA: An employer may require the employee to provide medical certification supporting the need for leave. U. S. Department of Labor Form WH-380 outlines the statutorily prescribed medical certification questions.

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Substitution of Paid Leave

  • WFMLA: An employee may substitute accrued leave (paid or unpaid) of any type offered by the employer.
  • FMLA: An employee may elect, or the employer may require, that accrued paid leave be substituted in some cases. There are no limits on substituting paid vacation or personal leave.

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Intermittent Leave

  • WFMLA: Permitted for all family and medical leaves in increments equal to the shortest increments the employer permits for any other non-emergency leave. (e.g., hour, half-day, day).
  • FMLA: Permitted for serious health conditions when medically necessary. Intermittent leave for births, adoptions, and foster care placements is not permitted unless the employer and employee agree to such leave.

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Maintenance of Health Benefits

  • Under both statutes, an employer must maintain the employee's group health coverage under the same conditions as existed prior to the leave The employee must continue to pay the employee's share, if any, of the insurance premium.

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Job Protection

  • Both laws require the employer to return the employee to the same position or an equivalent position after the end of the leave with no loss of pay, benefits, or other terms and conditions of employment.

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Posting of WFMLA and FMLA Rights

  • Both laws require employers to post notices informing employees of their rights under the respective laws.

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Violation of WFMLA and FMLA Rights

  • Both laws provide for legal penalties for not providing WFMLA and FMLA rights or for discriminating or retaliating against employees who seek to assert their rights.

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About the author:
Jennifer Mirus is a partner in the Labor and Employment Law Practice Group at the Boardman Law Firm. She has extensive experience troubleshooting all aspects of employment relations for her clients, including hiring and firing, wage issues, discrimination, FMLA, and harassment. Jennifer assists small and large businesses in creating practical solutions for their workplace issues. Jennifer is a member of the Society of Human Resource Management, is an alumna of Leadership Greater Madison and is past President of the Legal Association for Women. She also enjoys giving frequent talks on Human Resource legal issues.

Copyright © Jennifer S. Mirus, Boardman Law Firm, 2008.

Jennifer S. Mirus
Boardman Law Firm
jmirus@boardmanlawfirm.com
(608)283-1799

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