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Wage and Hour Division

Wage and Hour Division (WHD)

Federal vs. Wisconsin Family and Medical Leave Laws

 

FEDERAL ELEMENTS

STATE ELEMENTS

Employer Covered

Private Employers of 50 or more Employees in at least 20 weeks of the current or preceding year

Public agencies, including state, local, and Federal Employers

Local education agencies covered under special provisions

Private and public Employers with at least 50 individuals on a permanent basis

No special provision for education agencies

Employees Eligible

Worked for Employer for at least 12 months - which need not be consecutive; worked at least 1,250 hours for Employer during 12 months preceding leave; and employed at Employer worksite with 50 or more Employees or within 75 miles of Employer worksites with a total of 50 or more Employees

Have worked for Employer for at least 52 consecutive weeks and at least 1000 hours in preceding 52 weeks

No worksite proviso

Leave Amount

Up to a total of 12 weeks during a 12-month period; however, leave for birth, adoption, foster care, or to care for a parent with a serious health condition must be shared by spouses working for same Employer

During a 12-month period:

  1. 6 weeks for a birth or adoption
  2. 2 weeks for serious health condition of parent, step-parent, child or spouse
  3. 2 weeks for Employee's own serious health condition
  4. Employee may not take more than 8 weeks in a year for any combination of the above leave

No provision requiring spouses to share leave

Type of Leave

Unpaid leave for birth, placement of child for adoption or foster care, to provide care for Employee's own parent (including individuals who exercise parental responsibility under state law), child, or spouse with serious health condition, or Employee's own serious health condition

Birth, adoption, serious health condition of Employee, parent, parent-in-law, child or spouse

Serious Health Condition

Illness, injury, impairment, or physical or mental condition involving incapacity or treatment connected with inpatient care in hospital, hospice, or residential medical-care facility; or, continuing treatment by a health care provider involving a period of incapacity: (1) requiring absence of more than 3 consecutive calendar days from work, school, or other activities; (2) due to a chronic or long-term condition for which treatment may be ineffective; (3) absences to receive multiple treatments (including recovery periods) for a condition that if left untreated likely would result in incapacity of more than 3 days; or (4) due to any incapacity related to pregnancy or for prenatal care

A disabling physical or mental illness, injury, impairment or condition involving inpatient care in a hospital, nursing home or hospice; or outpatient care that requires continuing treatment or supervision by a health care provider

Health Care Provider

Doctors of medicine or osteopathy authorized to practice medicine or surgery; podiatrists, dentists, clinical psychologists, clinical social workers, optometrists, chiropractors (limited to manual manipulation of spine to correct subluxation shown to exist by x-ray), nurse practitioners, and nurse-midwives, if authorized to practice under State law and consistent with the scope of their authorization; Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, MA; any provider so recognized by the Employer or its group health plan's benefits manager; and any health provider listed above who practices and is authorized to practice in a country other than the United States

Similar to Federal provision, but also including licensed or certified physician, physician assistant, respiratory care practitioner, physical therapist, dietician, athletic trainer, occupational therapist, pharmacist, acupuncturist, social worker.

Intermittent Leave

Permitted for serious health condition when medically necessary. Not permitted for care of newborn or new placement by adoption or foster care unless Employer agrees

Employee may schedule medical leave as medically neccessary and partial absences for family leave in a manner that does not unduly disrupt the Employer's operations

Substitution of Paid Leave

Employees may elect or Employers may require accrued paid leave to be substituted in some cases. No limits on substituting paid vacation or personal leave. An Employee may not substitute paid sick, medical, of family leave for any situation not covered by any Employers' leave plan

Employee may elect to substitute accrued paid or unpaid leave

Reinstatement Rights

Must be restored to same position or one equivalent to it in all benefits and other terms and conditions of employment

Similar to Federal provision

Key Employee Exception

Limited exception for salaried Employees if among highest paid 10%, within 75 miles of worksites, restoration would lead to grievous economic harm to Employer, and other conditions met

No specific provision

Maintenance of Health Benefits During Leave

Health insurance must be continued under same conditions as prior to leave

Similar to Federal provision

Leave Requests

To be made by Employee at least 30 days prior to date leave is to begin where need is known in advance or, where not foreseeable, as soon as practicable.

If due to a planned medical treatment or for intermittent leave, the Employee, subject to health care provider's approval, shall make a reasonable effort to schedule it in a way that does not unduly disrupt Employer's operation

Made by an Employee in advance in a reasonable and practicable manner; similar to Federal provision insofar as an Employee is required to make a reasonable effort to schedule medical treatment

Medical Certification May Be Required by Employer for:

Request for leave because of serious health condition

To demonstrate Employee's fitness to return to work from medical leave where Employer has a uniformly applied practice or policy to require such certification

Employer may request certification for serious health condition

No provision relating to certification of fitness to return to work

Executive, Administrative, and Professional Employees

Such individuals are entitled to FMLA benefits. However, their use of FMLA leave does not change their status under the Fair Labor Standards Act (FLSA), i.e., an Employer, does not lose its exemption from the FLSA's minimum wage and overtime requirements.

No specific provision