Payroll Data Services Blog

What Wisconsinites Need to Know about FMLA


Nothing in this article constitutes legal advice. Please consult a legal professional if you have questions about FMLA compliance.

Established in 1993, the Family and Medical Leave Act (FMLA) is a federal labor law that entitles eligible employees to take unpaid, job-protected leave for specified family and medical reasons. While the federal law sets the baseline requirements for employers that must comply, several states, including Wisconsin, have their own set of requirements. As an employer, it’s critical to ensure you are in compliance with all applicable laws.

Which employers must comply with the FMLA?

Wisconsin has its own FMLA, known as the Wisconsin Family and Medical Leave Act (WFMLA). If you are a Wisconsin employer, you must comply with both state and federal laws. If more than one law applies to employees, you must grant leave based on which requirements are more favorable to employees. This can vary depending on the circumstances, so employers need to assess the applicable leave provisions on a case-by-case basis.

According to the WFMLA, employers must comply if they have 50 or more permanent employees during at least six of the last 12 calendar months. Under FMLA requirements, employers must comply if they have 50 or more employees in at least 20 weeks of the current or preceding year. This count includes full-time and part-time employees and any employee on layoff or a leave of absence. However, this minimum employee requirement does not apply to public agencies, such as government departments like the Social Security Administration or Department of Motor Vehicles. Elementary and secondary schools (both public and private) are also exempt.

Under what circumstances does the FMLA apply?

The WFMLA allows eligible employees of a covered employer to take designated amounts of job-protected leave for each of the following circumstances:

  • Up to six weeks for the birth of a child or placement of a child with the employee for adoption.
  • Up to two weeks for the employee’s own serious health condition, which renders the employee unable to perform the functions of his or her job.
  • Up to two weeks to care for a family member (spouse, child, parent, or parent-in-law).

The FMLA allows eligible employees of a covered employer to take 12 work weeks of job-protected, unpaid leave in a 12-month period:

  • For the birth of a child or placement of a child with the employee for adoption.
  • To care for a family member (spouse, child or parent) with a serious health condition.
  • Due to the employee’s own serious health condition which renders the employee unable to perform the functions of his or her job.
  • For an urgent qualifying need arising out of the fact that the employee’s spouse, son, daughter or parent is a military member on active duty or called to active duty.

Which employees are eligible for FMLA?

The eligibility requirements differ between the FMLA and WFMLA, and if you’re a Wisconsin employer, your employees are entitled to protections of both state and federal laws. If you’re a qualifying employer without state requirements, you must abide by the federal FMLA. Since WFMLA and FMLA leaves run concurrently, employees are entitled to the protections of whichever law has more favorable terms.

Under the WFMLA, employees are eligible under the following circumstances:

  • They’ve been employed for 52 consecutive weeks of employment (unlike federal requirements, these must be consecutive).
  • They’ve been paid for at least 1,000 hours of work in the last 52 weeks.

Under the FMLA, employees are eligible under the following circumstances:

  • They’ve been employed for at least 12 months of employment (these do not need to be consecutive months).
  • They’ve worked at least 1,250 hours in the last 12 months.
  • They work at a location with at least 50 employees within a 75-mile radius.

Key differences between Wisconsin and Federal FMLA

In addition to the differences in employee eligibility and covered employers, there are a significant number of differences between the FMLA and WFMLA requirements. If you’re an employer in Wisconsin, it’s crucial to be aware of the federal and state parameters so you can comply with both. To help you compare the state and federal laws, we’ve created a comprehensive chart outlining the differences here.  

What are your obligations as an employer?

It’s up to employers to keep accurate records and communicate important FMLA information to their employees. As part of the FMLA, qualifying employers are required to:

  • Display a general notice poster about the FMLA in plain view for all workers to see.
  • Notify employees concerning their eligibility status and rights and responsibilities under the FMLA. Employers are required to provide notification within five business days of the initial request for leave, or when they find out an employee leave may be for an FMLA-qualifying reason.
  • Officially designate the employee’s leave as FMLA-qualifying and give notice of the designation to the employee.
  • Keep records of all FMLA leaves, including all payroll and leave compensations for at least three years. These records must be available upon request for inspection or copying by the Department of Labor.
  • Under the Tax Cuts and Jobs Act (TCJA), you can claim a business tax credit equal to a minimum of 12.5% of wages paid to employees on family and medical leave (if the employees are paid at least 50% of their normal wages). To claim this credit, fill out and submit the recently released IRS Form 8994.

Stay on top of recordkeeping.

There’s no question FMLA issues are complex. On top of making sure you’re up-to-date on the latest regulations, you have to closely track employee FMLA leave time and keep accurate records. With our timekeeping solution, Orbit Time & Labor, you can make life easier by automating time tracking. To find out how our technology can streamline your recordkeeping, contact your client service representative (CSR) or send us a note today!

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