Family and Medical Leave Act (FMLA)
Federal and Wisconsin Family and Medical Leave Act
The Federal Family and Medical Leave Act (FMLA) and the Wisconsin Family and Medical Leave Act (WFMLA) provide you with the right to take job-protected leave with continued medical benefits when you need time off from work to care for yourself or a family member who is seriously ill, to care for a newborn or newly adopted child or to attend to the affairs of a family member who is called to active duty in the military.
You may be eligible for more generous leave provisions under University Policy Guidelines or your applicable collective bargaining agreement. Leave taken for FMLA-eligible reasons must run concurrently under FMLA, WFMLA and other leave provisions available. The leave available under the various provisions is exhausted simultaneously. To understand how the integration of laws with state and university policies and collective bargaining affects you, please contact your campus human resources office.
For eligibility purposes, all State of Wisconsin employers, including the University of Wisconsin System are considered one employer.
- You must have worked for the State for more than 52 consecutive weeks.
- You must have worked for the State for at least 1,000 hours during the 52-week period preceding beginning of the leave. You may include vacation, sick leave and other paid leave taken to count to the minimum 1,000 hours.
- You must have worked for the State for at least 12 months (need not be consecutive).
- You must have worked for the State for at least 1,250 hours of service during the 12-month period preceding the beginning of the leave. Count only actual hours worked.
You are allowed up to ten workweeks per year of unpaid job-protected leave with continued medical benefits as follows:
- Up to six weeks of unpaid leave for the birth or adoption of a child, to begin within 16 weeks of the birth or placement of that child. No more than one six-week period per child.
- Up to two weeks of unpaid leave for the care of a child, spouse or parent with a serious health condition. Your employer may require certification from a health care provider.
- Up to two weeks of unpaid leave in a 12-month period for your own serious health condition that makes you unable to perform your duties. Your employer may require certification from a health care provider.
You are allowed up to 12 workweeks per year of unpaid, job-protected leave with continued medical benefits for any combination of following reasons:
- To care for your child after birth, adoption or foster care placement - the leave must conclude within 12 months of the event
- To care for your spouse, child or parent who has a serious health condition
- To seek treatment for your serious health condition
- To take a leave due to any qualify exigency that arises because you have an eligible family member (spouse, son, daughter or parent) that is called to active duty or is on active duty status in support of a military contingency operation. The Service Member must be in the reserve components of the military (e.g. National Guard). The U.S. Department of Labor defines eight broad categories for which an employee may use FMLA leave:
- Short-notice deployment (7 days notice or less)
- Attend military events/ceremonies and related activities related to active duty or call to active duty
- Childcare and school activities
- Financial and legal arrangements
- Spend time with a military member who is on temporary rest and recuperation leave
- Post-deployment activities
- Additional activities not encompassed in the other categories, but agreed to by the employer and employee
Under FMLA only, you are also allowed up to 26 workweeks of unpaid, job-protected leave with continued medical benefits in a "single 12-month period" to care for an eligible military Service Member who has a serious injury or illness that occurred in the line of duty on active duty for which the Service Member is undergoing medical treatment, recuperation, therapy, on outpatient status or is on the temporary disability retired list.
- The Service Member must be a current member of the Regular Armed Forces, including a member of the National Guard or Reserves, or a member of the Armed Forces, the National Guard or Reserves who is on the temporary disability retired list.
- The employee must be the spouse, son, daughter, parent, or next of kin (neared blood relative other than the Service Member's spouse parent, son or daughter) of a covered Service Member.
- The "single 12-month period" commences on the first day of leave taken to care for the Service Member and expires 12 months from that date
- If the employee does not take all of the 26 workweek entitlement during the "single 12-month period," the remainder of the 26 workweek entitlement is forfeited.
- The "single 12-month period" is applied on a per-covered-Service Member, per-injury basis so an employee may be entitled to take more than one period of 26 workweeks of leave if the leave is to care for a different Service Member or the same Service Member with a subsequent illness or injury.
- No more than 26 workweeks of leave may be taken within any "single 12-month period"
- An employee is entitled to a combined total of 26 workweeks of leave for any FMLA-qualifying reason during the "single 12-month period." Within the "single 12-month period," an employee is limited to a total of 12 weeks of FMLA leave for any purpose other than to care for an injured Service Member.
Substitution of Paid Leave During a FMLA and/or WFMLA Leave
Under WFMLA, employee may elect to substitute any type of employer-provided paid leave (vacation, sick leave, personal holiday...) during WFMLA-approved leave. The employer may not force substitution.
Under FMLA only, employee may be eligible to substitute some forms of employer-provided paid leave during a FMLA-approved leave. There is no limit on substituting paid vacation, sabbatical, personal/floating holiday or comp time but the employee many not substitute paid sick leave for any situation where the employee is not otherwise allowed to use sick leave per employer sick leave policy. For example, an employee may not use sick leave during a FMLA military exigency leave to arrange for childcare, attend military ceremonies, attend to legal affairs.
FMLA and WFMLA Provisions
The Office of State Employment Relations (OSER) developed a side-by-side comparison of FMLA and WFMLA provisions that outline all facets of both programs and which program is more generous. The employee is always eligible to receive the more generous provision. The Department of Workforce Development also provides a comparison guide and FAQ on their website.
The U.S. Department of Labor (DOL) summarizes all FMLA provisions in Fact Sheet #28: The Family and Medical Leave Act of 1993. The DOL also has a website dedicated to the FMLA and a FMLA poster that must be posted by the employer.
UW System Administration General Counsel's website outlines WFMLA and FMLA provisions.
The full text of the FMLA Final Rule can be found in 29 CFR Part 825 (the actual Act begins on page 141 of the PDF). The WFMLA was created by Wis. Stats. §103.10 and its implementation is outlined in Wis. Admin. Code Ch. DWD 225.
Effect on Tenure
Family and medical leave does not constitute a break in continuous service for faculty (chg. UWS 3.04(3), Wi's. Admin. Code) or academic staff (UWS 10.3(2)(a)3, Wi's. Admin. Code). When the leave is due to childbirth or adoption, or significant responsibilities with respect to your own or a family member's disability or chronic illness or a qualifying exigency, and those circumstances could significantly impede progress toward achieving tenure, that leave is not included in the seven-year probationary period. Faculty and academic staff may be granted up to a year probationary extension for the birth or adoption of a child.
Example: A faculty member has been on probationary status for a total of nine years because s/he was granted two requests for one-year extensions because of the birth of two children. The faculty member's teaching, research, professional and public service and contribution to the institution is evaluated as if only seven years were worked towards achieving tenure, rather than 9 years worked toward this achievement.
For more Information
The University of Wisconsin policy for unclassified employees on family and medical leave is included in Unclassified Personnel Guideline #10 where the use of sick leave is addressed. Sections 3, 10, and 19 of chg. UWS, Wisconsin Administrative Code, provide Board of Regents policies for university faculty and academic staff.
The WFMLA and FMLA policy for classified employees is explained in detail in chapter 724 of the Wisconsin Human Resources Handbook. If you are represented, your collective bargaining agreement may provide more liberal leave provisions.