First of all, when we say “leave” we are referring to leave as a general term of not being required to be at work. So, leave is an umbrella term that refers to vacation time, sick time, personal time, PTO and whatever other creative term may be used to refer to time away from work.
A common misconception is that all employers are required to provide leave to their employees. However, whether or not an employer is required to provide leave is largely dependent on the size of the employer. For the most part, employers that employ less than 50 employees (“small employers”) are not required to provide leave. But, what we often see is that small employers actually opt themselves in with employee handbooks or other policy documents.
Federal Family and Medical Leave Act
The federal Family and Medical Leave Act (FMLA) is a federal statute that applies to employers with 50 or more employees. If an employer has employees at multiple worksites, employees within 75 miles of each other are counted toward the threshold of 50. Once FMLA applies to an employer, to be eligible for leave under FMLA, an employee must have been employed by his or her employer for at least twelve months and have worked more than 1,250 hours during the previous twelve months.
Federal FMLA provides an eligible employee with a total of 12 weeks of leave during a calendar year. The leave need not be paid, and can be used for a specific list of reasons, including serious health conditions, birth or adoption of a child, and active military duty.
Wisconsin Family and Medical Leave Act
The Wisconsin Family and Medical Leave Act (WFMLA) applies to employers with 50 or more permanent employees. Employers with fewer than 50 but more than 25 employees are obligated to post notices about their own leave policies. For more information about posting notices, look here: Don’t be Scammed by Employment Posters! Employees who have been employed by the same employer for more than 52 consecutive weeks and have worked for at least 1,000 hours during the preceding 52 week period are eligible for leave under WFMLA.
WFMLA provides that an eligible employee may take up to six weeks of leave which need not be paid, under the current law*, in a calendar year for the birth or adoption of a child, and an eligible employee may take up to two weeks of family leave in a calendar year for the employee’s or family member’s serious health conditions.
The reasons for leave and parameters under which leave may be taken are somewhat complex and are laid out in the laws themselves. Employers with employees in Wisconsin are generally going to be subject to both FMLA and WFMLA (not one or the other). However, employees generally cannot stack the two different leaves on top of each other to use more than twelve weeks of leave.
* Legislation was re-introduced in February to create an employee-funded state wide leave program in Wisconsin
Wisconsin Bone Marrow and Organ Donation Leave Act
The Wisconsin Bone Marrow and Organ Donation Leave Act requires all employers with 50 or more employees to provide up to six weeks of leave in any twelve month time period for the purpose of donating bone marrow or an organ. To qualify, similar to the WFMLA, the employee must have worked for the employee more than 52 consecutive weeks and at least 1000 hours during those 52 weeks. The employee must provide written verification that the employee will serve as a donor, and the leave may only be for the length of time needed for the employee to undergo the donation process and recover.
Employers with 25 employees or more must post a notice with the employer’s leave policies. For more information about posting notices, look here: Don’t be Scammed by Employment Posters!
What about employers not subject to either FMLA, WFMLA or the Bone Marrow and Organ Donation Leave Act?
Even if an employer is not subject to FMLA, WFMLA, or the Bone Marrow and Organ Donation Leave Act, employers are still expected to follow any stated leave policies in their handbooks or any other policy manuals. For example, an employer in Wisconsin that employs only 10 employees that has a policy in its handbook stating that it provides two weeks of leave upon qualifying conditions would still be required to provide that leave.
All employers should be mindful of issues that may arise under other employment laws, including the Americans with Disabilities Act, the Wisconsin Fair Employment Act, and the Wisconsin Workers Compensation Act, which may require leave in certain situations, irrespective of FMLA or WFMLA.
Are there other times when a small employer is required to provide leave?
Yes! The following are a few other scenarios where an employer needs to provide leave, and the leave need not be paid.
- Voting. All employers must give employees up to three consecutive hours to vote each election day, regardless of the size of the business or type of industry or employer. The employee must tell the employer before election day of the employee’s intent to be absent to vote, and the employer may determine the hours and time of day the employee is excused to vote.
- Jury duty. All employers must provide an employee a leave of absence for jury duty, for the entire time the employee is required to serve on the jury. Employers may request proof the requested jury service.
- Testifying pursuant to subpoena. All employers must allow employees leave to allow employees to testify for the amount of time needed. Employers may request the employee to show a copy of the subpoena.
Contact Kramer, Elkins & Watt, LLC at 608-709-7115 or firstname.lastname@example.org for more information about how to ensure your company’s leave policies and practices comply with the law and are properly tailored to your business.