- Job-protection and a right to reinstatement once FMLA leave ends
- Maintaining the same health benefits while on leave as if an employee had continued working
- Protection from discrimination, interference from, and retaliation for utilizing FMLA leave
FMLA Eligibility & Entitlement
Whether an employee is eligible for FMLA leave involves two separate questions:
- Whether the employer is covered by the FMLA
- Whether the employee is eligible for FMLA leave
To see how the eligibility requirements and entitlements differ at the federal and state level, see the difference between FMLA and WFMLA.
Generally speaking, an employer is covered by the FMLA if it meets one of the following requirements:
- It employs 50 or more employees
- If it is a state, local, or federal public agency, regardless of the number of employees
- If it is a public or private school, regardless of the number of employees
Employee Eligibility and Entitlement
An employee is eligible for FMLA leave and entitled to benefits and protections if the employee:
- Has worked for his or her employer for at least 1 year
- Has worked at least 1,250 hours within the last year (1,00 for WFMLA)
- Has worked with 50 or more employees at a worksite
- Has not exceeded 12 weeks of leave in the prior 12 months (8 weeks for WFMLA)
If all of these conditions are met, an employee is eligible for up to 12 weeks of leave during any 12-month period under the FMLA. However, spouses working for the same employer must share leave when taken for birth, adoption, foster care, or to care for a parent with a serious health condition. Under the Wisconsin Family & Medical Leave Act, an employee can take up to 2 weeks of unpaid leave during any 12-month period in addition to leave taken under the federal Family & Medical Leave Act.
An employee’s eligibility is determined at the end of the first leave period for each FMLA-qualifying reason you have within the 12-month period. An employee has a legal right to take FMLA leave if he or she qualifies for it, the employer is covered, and the employee appropriately follow the procedures for requesting leave.
Under the Family and Medical Leave Act (FMLA), an employer generally has a right to advance notice from the employee of his or her need for leave. In addition, the employer may require an employee to submit a medical certification to substantiate that the leave is due to a qualifying reason.
Foreseeable and Unforeseeable Leave
An employee must provide 30 days advanced notice when the need for leave is foreseeable and notice is practicable. If the need for leave is within 30 days or unforeseeable, the employee must provide notice as soon as possible. The employee will need to provide sufficient information in order for the employer to reasonably determine whether the leave will qualify under FMLA. It is important the employee comply with the employer’s usual notice and procedural requirements for requesting FMLA leave. If the employee is unable to do so personally, notice may be given by a spokesperson (e.g., spouse, adult family member, or other responsible party).
Intermittent Leave & Scheduling Medical Treatment
Taking intermittent FMLA leave, or leave on a reduced schedule, must be medically necessary due to a serious health condition, injury, or illness. The employee and the employer must then attempt to work out a schedule for medical treatment and leave that meets the employee’s needs without unduly disrupting the employer’s operations.
Failure To Provide Notice
If an employee fails to comply with these requirements, it may result in a delay in the start of his or her FMLA leave, or a denial of FMLA leave altogether.
Employers must prominently post FMLA posters around the workplace and create an FMLA policy, either in the Employee Handbook or separately and distributed to all employees. Wisconsin employers with more than 25 employees are required to post the employer’s family and medical leave policies, even if they are not otherwise subject to provide leave rights.
FMLA Medical Certification
Employers may require that an employee’s request for leave due to a serious health condition affecting the employee or a covered family member be supported by a certification from a health care provider, such as a doctor, physician, or specialist.
An employee may choose to comply with the certification requirement by providing the employer with an authorization, release, or waiver allowing the employer to communicate directly with the health care provider of the employee or his or her covered family member. The employer cannot require this, though.
If the employer has any reason to doubt the validity of the employee’s certification, the employer may require the employee submit to a second or third opinion, at the employer’s expense, concerning any information included in the original certification.
Pending the employer’s receipt of the second (or third) opinion, the employee is provisionally entitled to FMLA benefits, including maintenance of group health benefits.
If the certifications do not ultimately establish the employee’s entitlement to FMLA leave, the leave shall not be designated as FMLA leave and may be treated as paid or unpaid leave under the employer’s established leave policies.
Reinstatement After FMLA Leave
An employee who returns to work from FMLA leave is entitled to be returned to the same position, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee’s taking of FMLA leave cannot result in the loss of any benefit that accrued prior to the start of the FMLA leave.
An employee is entitled to this reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence.
However, an employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.
Fitness For Duty Certification
Before an employee returns to work and pursuant to a uniformly applied policy, the employer may also require that an employee present a certification of fitness to return to work when the absence was caused by the employee’s serious health condition.
An employer can legally delay an employee’s reinstatement until an employee submits a fitness-for-duty certification. An employee who does not provide a fitness-for-duty certification or request additional FMLA leave is no longer entitled to reinstatement under the FMLA.
Employer Interference & Retaliation
The Family and Medical Leave Act (FMLA) and Wisconsin Family and Medical Leave Act (WFMLA) prohibit covered employers from interfering with, restraining, or denying the exercise of (or attempts to exercise) an employee’s rights under the FMLA. “Interference” can include:
- Transferring an employee from one worksite to another for the purpose of reducing worksites, or to keep worksites, below the threshold for employee eligibility under the FMLA
- Changing the essential functions of an employee’s job in order to preclude the employee from taking FMLA leave
- Reducing an employee’s work hours in order to avoid employee eligibility
- Terminating or otherwise discriminating against an employee to avoid the employee’s future use of FMLA leave
Employers cannot discriminate or retaliate against an employee or prospective employee for having exercised or attempted to exercise FMLA rights.
An employer also cannot terminate or in any other way discriminate against any person, whether or not an employee, for opposing or complaining about any unlawful practice under the FMLA, or for filing an FMLA complaint, giving, or about to give, information relating to the FMLA, or testifying in a proceeding under the FMLA.
An employer may be liable for compensation and benefits lost, attorneys’ fees, other actual monetary losses sustained as a direct result of its violation of the FMLA, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered.
Wisconsin FMLA versus Federal FMLA
The Wisconsin Family and Medical Leave Act (WFMLA) and federal Family and Medical Leave Act (FMLA) are highly similar to one another in some respects, but greatly vary in others.
In general, the federal Family and Medical Leave Act (FMLA) is more advantageous for employees. If an employer is covered under the federal Family and Medical Leave Act (FMLA) and the individual meets the requirements of an “eligible” employee, that employee will not have any need for the Wisconsin Family and Medical Leave Act (WFMLA).
To see how the eligibility requirements and entitlements differ at the federal and state level, download this PDF comparison chart showing specific differences between FMLA and WFMLA.
The Walcheske & Luzi, LLC Difference
At Walcheske & Luzi, LLC it is our pledge to provide open and honest advice, taking the time to listen, counsel, and advise. We will work closely with you to help you understand and solve FMLA issues. Tell us about your FMLA case or compliance issue, we’re ready to help.
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