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  • FMLA, need help with WI vs Federal Wisconsin

    Sorry, this may seem basic, but it's honestly the first time confronted with this, and I am getting conflicting messages from DWD.

    Employee is wanting to take FMLA time for serious medical condition. She is wanting this time to be completely unpaid (about 8 weeks) because she is planning a long vacation in October (!!!).
    Now, WI law and Federal say two different things. Under WI an employee can designate if they want to use paid time, and every single person has wanted to do that in the 5 years I've been here. This woman says "I thought I didn't have to use it." I began digging (we're small non-profit with not many employees and FMLA comes up maybe once a year, so it's admittedly not my most knowledgeable area) and heard the following.
    WI DWD employee says: employee can elect not to use paid leave for the 2 weeks that is covered by WIFML for serious health condition. If she then gets covered under Federal, comply with those requirements, which means employer's discretion on whether or not to require paid leave time used. She then recommended I talk to Dept of Labor just in case.
    Dept of Labor employee says: It's always unpaid no matter what, you can never require a paid substitution. When I asked about Federal kicking in when WI was exhausted, and reverting to Federal laws, she (somewhat condescendingly) said "Look, it's unpaid, that's what you do." When I said "What about Federal saying employer discretion?" She said "It's always unpaid but you can have a policy saying they need to use paid." When I ask how we can develop a policy that bucks what she is saying is WI law, she just kept getting frustrated and saying "You just need to develop a policy."
    So, now I'm completely flustered and have my director saying "None of this makes any sense."
    I know that this is a really basic question, and I should know better. But: is there ANY circumstance in WI where an employer can require the use of paid leave time during FML?
    Thank you in advance.

  • #2
    The policy you need to have is one that states "all paid timeoff must be used prior to any unpaid timeoff subject to any state or federal laws stating otherwise". This way you are not only applying it to FMLA leaves, but any time off for any reason. (we have this policy at our company in TX). That way you are covered that she can take the first two as unpaid under WI laws and you can require the rest be paid up to her PTO balance under FMLA, because you require any employee taking any time for any reason to be paid if they have PTO available.

    And yes, you would be within your rights to refuse her vacation in October, if you would also refuse it for an employee out on a non-protected leave earlier in the year would have also been refused. However, by forcing her to use PTO for the 6 weeks not covered under Wisconsin's version, I suspect she will be out of PTO unless you are very very generous with PTO.

    However your problem might be that you don't already have this policy in place. It might look like retalation to put it into place now after she has asked for the unpaid time. Have you ever allowed anyone to take unpaid timeoff when they had a PTO balance? Especially someone not protected by FMLA or WI's version?

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    • #3
      Ok, if I understand it correctly, you are saying the non-frustrating DWD employee's statements are the ones to be followed, and not the vague ones by the frustrating Dept of Labor employee.
      We do state in our Leave Policy that "Leave Time is required to be used before any unpaid leave will be granted." We have been known to grant small amounts of unpaid leave when an employee still has a leave balance, however we reserve this for extremely non-routine requests (employee covering a lot of open hours one week to help us out and wants to take small amount of recoup time from regular shift, people we take care of are gone to camp and no hours at house [and therefore out of their control that not working], etc). Now, I guess I was wrongly assuming that any statement regarding our own in house use of leave would be superseded by FMLA. Are we SOL here because we do not include "subject to any state or federal laws stating otherwise"?
      We would never make a policy change and enforce it retroactively on someone.

      Comment


      • #4
        Your policy can not supersede either state or federal laws. And personally I think your policy needs to separate out the leave time from leave pay. Many employees and some employers get really confused on the difference between the two. Because "Leave Time is required to be used before any unpaid leave will be granted" doesn't really make sense in the context...unless your definition of "leave time" is any paid time off. Most companies have both paid and unpaid leave time. I think you need to add the work "paid" onto the front of that sentence to distinguish it better.

        The DOL employee is not going to be great at giving advice on your state leave laws. Your state leave laws can only benefit the employee more, not less than FMLA. Wisconsin does that by allowing the employee to choose whether or not they want to use paid time for those first few weeks that are covered by both state and federal leave laws. So it is employee's choice during that time period. Past that, FMLA rules...and falls into the camp of paid/unpaid being up to the employer's policy. So the employer could require it be paid time if there is paid time available.

        However, an employer cannot require the employee on FMLA to take paid timeoff if it doesn't require other employees on other leaves to take paid timeoff because that would be to the employee on FMLA's detriment. So the fact that you don't require all employees to use paid timeoff before taking unpaid doesn't help your case in this instance. Even if it was just allowed for non-routine instances. I suspect there is no definition on what "non-routine" really means except that it is whenever the employer feels like making an exception to the policy. I've always told my managers that if they are going to make exceptions, then there was no reason to have the policy in the first place. Because they can possibly negate the policy by making the exceptions. And they have to be able to back up exactly why each exception was allowed and why it is different from this situation.

        I would suggest retaining local benefits counsel to help you re-write your leave policies to take into account both state and federal laws plus whatever outcome the employer wants as to paid/unpaid leave. Because while I can make suggestions, I am not in WI nor am I an attorney nor do I play one on TV. This is my understanding and what I require for my managers/employees in a different state than yours.
        Last edited by hr for me; 02-13-2012, 05:15 AM.

        Comment


        • #5
          To clarify: the section of our leave policy that I quoted is under the heading "Planned Use Of Paid Leave Time," so it is differentiated within the policy.

          I see what you mean about the unpaid leave for non-routine, which is actually something I've been trying to crack down on.

          Thanks for the advice, everyone.

          Comment


          • #6
            Originally posted by sramjet View Post
            Sorry, this may seem basic, but it's honestly the first time confronted with this, and I am getting conflicting messages from DWD.

            Employee is wanting to take FMLA time for serious medical condition. She is wanting this time to be completely unpaid (about 8 weeks) because she is planning a long vacation in October (!!!).
            Now, WI law and Federal say two different things. Under WI an employee can designate if they want to use paid time, and every single person has wanted to do that in the 5 years I've been here. This woman says "I thought I didn't have to use it." I began digging (we're small non-profit with not many employees and FMLA comes up maybe once a year, so it's admittedly not my most knowledgeable area) and heard the following.
            WI DWD employee says: employee can elect not to use paid leave for the 2 weeks that is covered by WIFML for serious health condition. If she then gets covered under Federal, comply with those requirements, which means employer's discretion on whether or not to require paid leave time used. She then recommended I talk to Dept of Labor just in case.
            Dept of Labor employee says: It's always unpaid no matter what, you can never require a paid substitution. When I asked about Federal kicking in when WI was exhausted, and reverting to Federal laws, she (somewhat condescendingly) said "Look, it's unpaid, that's what you do." When I said "What about Federal saying employer discretion?" She said "It's always unpaid but you can have a policy saying they need to use paid." When I ask how we can develop a policy that bucks what she is saying is WI law, she just kept getting frustrated and saying "You just need to develop a policy."
            So, now I'm completely flustered and have my director saying "None of this makes any sense."
            I know that this is a really basic question, and I should know better. But: is there ANY circumstance in WI where an employer can require the use of paid leave time during FML?
            Thank you in advance.
            I'm in WI so I'm very familiar with the differences in the two laws. You have to comply with the more generous provisions of both. (Yes, it's a total pain.)

            Under WFMLA, you cannot require an employee to use PTO/vacation time for leave time. This means that for the first two weeks of an employee's WFMLA/FMLA, you cannot require the employee to use their vacation time. After two weeks (for the employee's own illness), then WFMLA has been exhausted and now it's only FMLA, at which point you can require the employee to use PTO/vacation time.

            I think you're already aware of this but just to be certain, WFMLA and FMLA run concurrently, i.e., the employee doesn't get two weeks under the WFMLA and then 12 weeks under the FMLA. This employees receives a max of 12 weeks of leave time in total.
            Last edited by Beth3; 02-13-2012, 07:23 AM.

            Comment


            • #7
              Thank you. Am aware of them running concurrent with each other, I just wanted to make absolutely sure of the fact that our requirements under Federal *could* kick in after WI runs out. That DOL employee really rattled me with her condescending attitude and refusal to do anything but just repeat the same thing over and over again.

              Comment


              • #8
                our requirements under Federal *could* kick in after WI runs out. Absolutely. Not only may the requirements of the federal FMLA kick in after WFMLA runs out, they must. Under the federal law, the employer definitely has the option of requiring the employee to take whatever vacation/leave pay your company provides while an employee is on FMLA.

                You'll want to look into the different particulars between WFMLA and FMLA. There are a number and you always need to be complying with both.

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