Leaves of Absence Both classified and unclassified state employees enjoy generous leave of absence provisions under state and federal laws, the Wisconsin Administrative Code and collective bargaining agreements.
Unclassified leave is governed by the Wisconsin Administrative Code for the UW System (UWS Ch. 19), the Board of Regents Policies, Wisconsin Statute § 36.30, and the Unclassified Personnel Guidelines (UPG) 10, http://www.uwsa.edu/hr/upgs/upg.htm .
Leave for classified employees, including those in classified project positions, is regulated by the Office of State Employment Relations (OSER) by administrative code. Law provides for a six-month leave of absence for maternity and paternity, respectively, which may be extended or renewed upon request by the appointing authority for no more than six months. Employees may take a leave of absence without pay to serve in an unclassified position, or in a project appointment for a maximum of four years.
Union represented employees are generally entitled to a medical leave of absence without pay of up to six months.
WFMLA and FMLA
The Family and Medical Leave Acts or FMLA are the most widely-known type of leave, and they can be applied to everyone classified and unclassified, represented and nonrepresented. In Wisconsin, this leave is governed by both the federal and Wisconsin FMLA laws. FMLA and WFMLA provide for an unpaid leave of absence, although in specific circumstances, employees may use sick leave, vacation, personal holiday or legal holiday in conjunction with WFMLA and FMLA to receive pay during their leave. General information about WFMLA and FMLA leave is available on the Department of Human Resources FMLA Toolkit website.
Leave that is authorized under WFMLA/FMLA must be counted against any entitlement under the administrative rules. All qualifying leave should run concurrently.
To be eligible for Wisconsin FMLA, an employee must have worked for the employer for more than 52 consecutive weeks and must have been in pay status (either worked or paid leave) for 1,000 hours during the preceding 52-week period. If the reason for the leave is the birth of a child, or placement of a foster or adopted child, the maximum amount of leave permitted under WFMLA is six weeks. Leave taken for the birth of a child, or placement of a foster or adopted child must be taken within 16 weeks of the birth or placement of the child.
If the reason for the leave is the employee’s own serious medical condition, or if the leave is taken to provide care for the employee’s spouse, parent or child suffering from a serious medical condition, WFMLA provides a maximum of two weeks of leave. “Serious medical condition” means a disabling physical or mental illness, injury, impairment or condition that involves either inpatient care in a hospital, nursing home or hospice or outpatient care that requires continuing treatment or supervision by a health care provider.
To qualify for leave under the federal FMLA, an employee must have worked at least 12 months prior to the date the leave was requested and must have worked at least 1,250 hours within that time period. Unlike state law, federal FMLA requires the employee to have actually worked those hours, so any paid leave does not count toward the 1,250 hours needed to qualify for this type of leave. Also unlike WFMLA, federal FMLA does not require the 12-month employment period to be consecutive.
FMLA provides 12 weeks of leave for an employee’s own serious medical condition, which is defined as an illness or injury that prevents the employee from being able to perform his or her job duties. FMLA also provides 12 weeks for an employee to care for a child, spouse or parent who suffers from a serious medical condition.
In addition, legislation enacted in 2008 (the “National Defense Authorization Act”) amends the FMLA law to permit a spouse, son, daughter, parent or next of kin to take 26 workweeks of FMLA leave to care for a member of the Armed Forces, including the National Guard and Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status or is otherwise on the temporary disability retired list for a serious injury or illness.
Substitution of Sick or Vacation/Holiday during Leave
The Wisconsin Administrative Code authorizes an employee to “substitute” sick leave, earned vacation, sabbatical leave, holiday leave and compensatory time in order to continue to be paid during the period of absence. During a leave of absence without pay, no new leave is earned.
Accrued employer’s leave time may not be “stacked” with other types of leave but must run concurrently with WFMLA and FMLA. For instance, an employee who takes paternity leave pursuant to ER 18.14(2) (e) Wis. Adm. Code for six months may not then extend the absence by stacking on six weeks of WFMLA for family purposes.
Under WFMLA, intermittent leave is a partial absence from work and is taken in sporadic increments. Under federal law, intermittent leave is taken in separate blocks of time due to a single qualifying reason or is a reduced work schedule.
Certification by a Health Care Provider
Under both state and federal FMLA law, an employer may require an employee to provide a physician’s certification of a serious health condition if an employee requests medical leave for himself or herself or if the employee requests medical leave to care for a family member. The certification form can be found on the Department of Human Resources FMLA Toolkit website.
Recertification of a serious health condition may be requested not more often than every 30 days unless circumstances described by the previous certification have significantly changed or the employer receives information that casts doubt on the employee’s stated reason or the continuing validity of the certification. If an employee is on intermittent leave and requests an extension of this leave, recertification may be requested even if 30 days has not passed since the last medical certification.
The employing department may require the absent employee to report periodically on the employee’s status and his or her intention to return to work while that person is on leave.
Reserve or Guard Duty
According to Wisconsin Statutes §230.35(3), permanent employees who are members of a reserve or guard unit are entitled to 30 workdays’ paid leave per calendar year to attend military schools, annual field training, annual active duty training or any other active duty except extended active duty as a member of the active armed forces. Such leave is not granted for absences of less than three days. The employee is entitled to his or her base state pay, less base military pay received (the reduction shall not exceed the base state pay).
Under § 230.315 Wis. Stat., permanent state employees who are called to active duty service after January 1, 2003 (Wisconsin national guard, U.S. armed forces reserve or active military duty) shall be paid their state pay, less any military pay and housing allowances, and shall accumulate sick leave and paid annual leave of absence as though no interruption in service has occurred, for a period of not more than 179 days. By Executive Order of the Governor #50, those rights and benefits were extended to two years in duration.
Under 38 USC §4303, employees who are members of the uniformed services (Armed Forces, Army National Guard, Air National Guard) are entitled to an unpaid leave of absence, without loss of time in service to the state, to attend voluntary or involuntary active duty for training, inactive duty training, full-time National Guard duty or examination to determine fitness for duty (38 USC §4303 (13) for a period or periods up to a total accumulation of five (5) years’ absence.
Employees may substitute accrued leave time (annual leave, personal holiday, compensatory time) for some or all of the leave without pay.
For more information on military leaves, contact your personnel representative or the Department of Human Resources. See also the UW System Administration Web site, which collects all the applicable military leave and benefits information for UW campuses at: http://www.uwsa.edu/hr/benefits/leave/mresources.htm.