REPRESENTING EMPLOYEES FOR OVER 25 YEARS
Fair Employment Legal Services, S.C.
Attorney John D. Uelmen
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REPRESENTING EMPLOYEES FOR OVER 25 YEARS Fair Employment Legal Services, S.C. Attorney John D. Uelmen
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Family and Medical Leave Acts There are federal and state laws which require certain employers to grant family and medical leave to their employees and which guarantee that an employee taking such a leave will not be replaced. The federal law is known as the Family and Medical Leave Act of 1993 ("FMLA"). The law contains provisions on employer coverage; employee eligibility for the law's benefits; entitlement to leave, maintenance of health benefits during leave, and job restoration after leave; notice and certification of the need for FMLA leave; and, protection for employees who request or take FMLA leave. The law also requires employers to keep certain records. The FMLA applies to all public agencies, including state, local and federal employers, local education agencies (schools), private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year and who are engaged in commerce or in any industry or activity affecting commerce — including joint employers and successors of covered employers. To be eligible for FMLA benefits, an employee must: work for a covered employer; have worked for the employer for a total of 12 months; have worked at least 1,250 hours over the previous 12 months; and work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles. A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons: for the birth and care of the newborn child of the employee; for placement with the employee of a son or daughter for adoption or foster care; to care for an immediate family member (spouse, child, or parent) with a serious health condition; or to take medical leave when the employee is unable to work because of a serious health condition. Spouses employed by the same employer are jointly entitled to a combined total of 12 work-weeks of family leave for the birth and care of the newborn child, for placement of a child for adoption or foster care, and to care for a parent who has a serious health condition. Leave for birth and care, or placement for adoption or foster care must conclude within 12 months of the birth or placement. Under some circumstances, employees may take FMLA leave intermittently — which means taking leave in blocks of time, or by reducing their normal weekly or daily work schedule. If FMLA leave is for birth and care or placement for adoption or foster care, use of intermittent leave is subject to the employer's approval. FMLA leave may be taken intermittently whenever medically necessary to care for a seriously ill family member, or because the employee is seriously ill and unable to work. Also, subject to certain conditions, employees or employers may choose to use accrued paid leave (such as sick or vacation leave) to cover some or all of the FMLA leave. The employer is responsible for designating if an employee's use of paid leave counts as FMLA leave, based on information from the employee. Violations of the Family and Medical Leave Act can be investigated by the Wage and Hour Division of the United States Department of Labor. Individuals also have the right to file a lawsuit to enforce the law even if no complaint is filed with the Labor Department. The statute of limitations is either two or three years depending upon whether a willful violation of the law occurred. The state law is known as the Wisconsin Family and
Leave Act ("WFMLA"). The law applies to all employers with 50 or more permanent
employees. Employers with 25 or more employees must post a notice describing the
employer’s leave policy. Employees are covered if they have worked for the same
employer for more than 52 consecutive weeks and for at least 1,000 hours in the
preceding 52 week period. While covered employers may have more generous
policies than the law requires, they must grant the following amounts of leave
time to covered
employees under the following conditions: up to 6 weeks in a 12 month
period of family
leave for the birth of the employee’s natural child or for the placement of a
child with the employee for adoption if the leave begins within 16 weeks of the
child’s birth or the placement of the child for adoption; up to 2 weeks in
a 12 month period of family leave for the employee to care for a child, spouse
or parent with a serious health condition; and up to 2 weeks in a 12 month
period of medical leave if the employee has a serious health condition which
makes him or her unable to Employees may schedule medical leave as medically necessary. Employee may schedule family leave after reasonably considering the needs of his or her employer .Employees may take no more than 8 weeks of family leave in 12 months. Employees may also take partial absences (partial days or weeks) if they are scheduled so that they don’t unnecessarily disrupt the employer’s operations. The WFMLA is enforced by filing a complaint with the Equal Rights Division of the Wisconsin Department of Workforce Development. Generally, such a complaint must be filed within 30 days of the violation; however, under certain circumstances, the filing deadline can be extended. Many leave situations are governed by both FMLA and
the WFMLA. Leave cases can be difficult to prosecute because of the technical
provisions in these laws and the complicated medical issues that may arise. If
an employee encounters difficulty in scheduling leave or in returning from a
leave, prompt consultation with a lawyer can often preserve rights that would
otherwise be lost. |
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juelmen@ameritech.net with
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