Family leave law provisions

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Dear Joan:
You do not mention the size of the workforce in your column of July 8, 1990. If the workforce is comprised of fifty (50) or more employees, it falls under the regulations spelled out in the Wisconsin Family and Medical Leave Act. If the employer falls under the Family Leave Act, termination of an employee for the reasons cited in your column would not only be improper, but would also expose the employer to penalties listed in the act.

Answer:
You're right. Unfortunately, the letter printed June 8, 1990 didn't include any information about how many people were employed in that particular company or if she worked in the state of Wisconsin. But I'd like to use your excellent point to explain some of the particulars of the Act.

The situation to which you are referring is the case of an employee who has a daughter with acute asthma. The mother has used all her sick days and now has begun to take days off (14) without pay. The mother always has doctor's excuses but her manager doesn't know what to do, since she is missing so much work.

The Family and Medical Leave Act (Wis. Stat. Sec. 103.10) was effective April 26, 1988. If this employee works in Wisconsin, has been employed at her company for more than 52 weeks and the company employs 50 or more employees, she is probably eligible for benefits under this Act. She would be entitled to up to ten days leave (without pay) to care for a family member with a "serious health condition."

It sounds simple but can get complicated. For instance, if her company allows her to take sick days to care for her child, these can be credited to the leave. For instance, if the company allows six paid sick days that she used for child care, she would only get four days of unpaid leave under the Act. If her company doesn't permit sick days to be taken for childcare, she would get an additional ten days after the company's six.

Attorney Julie Buchanan, Milwaukee, has been helping companies understand the Act, since implementation has been complex and some details are under debate. She says, "I would encourage all covered employers to fully understand their obligations under this law. There are some nuances that they may not be aware of. For example, if a company has a paid disability plan that would allow a new mother six weeks paid leave, she could after that add an additional six weeks unpaid family leave."

An employer may not consider, in terminating an employee, absences covered by the Act. However, after those allowed absences, there may be a point where an employee is absent so much that an organization simply can't retain him or her. According to Buchanan, whether discipline or discharge would at that point be unlawful would depend on the circumstances.
To see if you may be eligible, here is some general information about the Act:

Types of Leave
Family leave (parental) provides up to six weeks unpaid leave for a child's birth or adoption. This leave begins within 16 weeks, before or after the birth or placement and can only be used once in any calendar year.

Family leave (caretaking) allows two weeks leave per 12-month period to care for an employee's child, spouse or parent with a "serious health condition." Buchanan adds, "The regulations define this as disabling physical or mental illness, injury, impairment or condition involving either in-patient care, or out-patient care that requires continuing treatment or supervision by a health care provider."

Medical leave allows two weeks leave during a 12-month period for an employee who has a "serious health condition." The same definition applies and is also described as one that makes the employee unable to perform his or her job duties.

Employee Rights
Employees who use the leave must be returned to their prior position or to an "equivalent" position (equivalent compensation, benefits and other terms of employment). Employers must also continue health insurance coverage.

Notice Requirements
An employee must give notice in a reasonable and practical manner. In other words, in the case of a medial leave or caretaking leave, employees need to inform their employer of the planned dates as soon as they are aware of the situation. Employers can require a written notice, unless it's an emergency. Family leave for a birth or adoption can be denied if proper notice isn't given.

Certification
For caretaking or medical leave an employer may require the employee to provide certification that the family member has a serious health condition, when it started, how long it may last and the medical details. In the case of personal medical leave, the employer may require an explanation (including a second opinion) of the extent to which the employee is unable to perform his or her job.

Scheduling
Leaves may be taken in less than one full work day if the employer allows other leaves in such increments. Also, leaves don't have to be taken all at once.

When planned leaves are made, employees must make a reasonable effort to schedule the leave so that it does not "unduly disrupt the employer's operation."

For more information about this Act, contact your employer or the Wisconsin Equal Right Division offices in Milwaukee (414)227-4384, or Madison (608)266-6860.

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