At It Again – FMLA Revised

By
July 9, 2009

Most employers in Wisconsin recently revised their Family and Medical Leave Act (FMLA) policy and forms to comply with the revised federal regulations that became effective on January 16, 2009. This was the first revision to the federal regulations since they were issued by the Department of Labor back in 1996. Therefore, employers felt they were “FMLA prepared” for a long period of time. Unfortunately, the Wisconsin legislature had other ideas.

On June 29, 2009, Governor Doyle signed Wisconsin’s budget law into effect. The budget law includes provisions that amend and expand Wisconsin’s FMLA. The amendments create two new categories of employees that are eligible for certain types of FMLA leave. The new categories of employees are registered and unregistered domestic partners.

The changes to Wisconsin’s law became effective on June 30, 2009. However, registered domestic partners will not be able to take leave until August 1, 2009 because this is the date domestic partners may begin registering in the State of Wisconsin (as discussed below).

NEW ENTITLEMENTS

Before the amendments were adopted, Wisconsin’s FMLA granted eligible employees with three types of FMLA leave. Those leaves included: (1) up to six weeks of leave for the birth or adoption of a child; (2) up to two weeks of leave to care for a spouse, parent, child, or parent-in-law who has a serious health condition; and (3) up to two weeks of leave if the employee has a serious health condition.

The amendments grant employees leave for certain situations involving domestic partners. Employees may now take leave to care for a domestic partner who has a serious health condition, or to care for a domestic partner’s parent who has a serious health condition.

However, the amendments did not expand the definition of “child” to include a domestic partner’s child. Therefore, an employee cannot take FMLA leave to care for a domestic partner’s child who has a serious health condition, or for purposes of childrearing (i.e., bonding) with respect to a domestic partner’s child unless the child is also the employee’s “child” as defined by the statute (e.g., in most cases, employee is biological parent).

DEFINITIONS

An employee can become a domestic partner for FMLA purposes by two methods. First, an employee can register the domestic partnership with the Wisconsin County Register of Deeds for the county in which the domestic partners reside. This is called “registered domestic partner” status. Second, an employee can be in an unregistered domestic partnership. An unregistered domestic partnership is a relationship between two persons, not necessarily the same gender, who meet certain requirements (listed below).

Registered Domestic Partner.

Employees who choose to register their domestic partnership must meet the following requirements and certify to them:

Each person is at least 18 years old and capable of consenting to the domestic partnership;
Neither person is married to, nor in a domestic partnership with, another individual;
The two persons share a common residence (e.g., live together);
The two persons are not closer to each other in terms of relationship than second cousins, whether of the whole or half blood or by adoption; and
Persons are the same gender.

Unregistered Domestic Partner.

This relationship is between two persons; however, the two persons are not necessarily required to be of the same gender (e.g., could be boyfriend and girlfriend). They must meet the following requirements:

Each person is at least 18 years old and competent to enter into a contract;
Neither person is married to, nor in a domestic partnership with, another person;
The two persons share a common residence (i.e., live together);
The two persons are not related by blood in any way that would prohibit marriage under Wisconsin law;
The two persons consider themselves to be members of each other s immediate family; and
The two persons agree to be responsible for each other s basic living expenses.

WHAT DOES THIS MEAN FOR WISCONSIN EMPLOYERS?

Employers subject to Wisconsin’s FMLA must be aware of the two new categories of employees that are now eligible for certain types of FMLA leave. This is important so an employer can recognize that an employee may fall into one of the categories and, therefore, be entitled to leave involving a domestic partner. Employers should also identify what steps they will take to verify that an employee claiming registered or unregistered domestic partnership status does, in fact, meet the requirements of the categories.

Employers should modify their current FMLA policy and forms (application form, response form, etc.) to incorporate the two new categories and leave entitlements and the methods that the employer will take to verify domestic partnership status.
The Wisconsin Department of Workforce Development has issued an updated work place posting that includes the new categories of domestic partners covered by Wisconsin’s FMLA. The new poster can be found on the www.dwd.state.wi.us/dwd Website.
If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

Back to all News & Insights

This document provides information of a general nature regarding legislative or other legal developments, and is based on the state of the law at the time of the original publication of this article. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations, or issues, and additional facts and information or future developments may affect the subjects addressed. You should not act upon the information in this document without discussing your specific situation with legal counsel.

© 2024 Ruder Ware, L.L.S.C. Accurate reproduction with acknowledgment granted. All rights reserved.