A Wisconsin employee may need to take Federal FMLA or Wisconsin FMLA (W-FMLA) leave to address a serious personal health condition that makes it impossible to work, to care for a spouse, child, or parent facing a serious medical issue, or to bond with a newborn, newly adopted, or foster child. Federal FMLA and Wisconsin FMLA protected leaves also cover certain military-related family situations, such as handling qualifying exigencies when a service member is called to duty or providing care for a covered service member with a serious injury or illness. In essence, the leave provides job-protected time away so employees can manage significant medical or family needs without risking their employment.
How Does Wisconsin FMLA Differ from Federal FMLA?
Wisconsin employees may be protected by two family and medical leave laws at once: the federal Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and the Wisconsin Family and Medical Leave Act (W-FMLA), Wis. Stat. § 103.10. The federal law does not displace more generous state laws, 29 U.S.C. § 2651(b), so an employee may claim whichever protection is greater. The two laws overlap, but they differ in who is covered, how much leave is available, how paid leave works, and how rights are enforced.
At a Glance
| Feature | Federal FMLA | Wisconsin FMLA |
| Covered employers | 50+ employees in 20+ workweeks | 50+ permanent employees in 6 of the prior 12 months |
| Employee eligibility | 12 months of service; 1,250 hours; 50 employees within 75 miles | 52 consecutive weeks; 1,000 hours |
| Total leave | 12 weeks (26 for military caregiver leave) | 6 weeks birth/adoption; 2 weeks family care; 8 weeks combined family leave; 2 weeks own medical |
| Family members | Spouse, child, parent | Adds parent-in-law, domestic partner, and domestic partner’s parent |
| Paid-leave substitution | Employer may require it | Employee chooses |
| Military leave | Qualifying exigency and caregiver leave | None |
| Enforcement | Federal or state court lawsuit | DWD Equal Rights Division complaint, then circuit court |
Coverage and Eligibility
The W-FMLA is easier to qualify for. Federal eligibility requires 12 months of employment, 1,250 hours of work in the prior year, and a worksite with at least 50 employees within 75 miles. 29 U.S.C. § 2611(2). The W-FMLA requires 52 consecutive weeks of employment and only 1,000 hours in the preceding 52 weeks, with no 75-mile test. Wis. Stat. § 103.10(2)(c). A part-time employee, or an employee at a small branch office, may be protected by state law even when federal law does not apply.
The employer-size tests also differ. Federal law counts employees during 20 or more workweeks. The W-FMLA counts employers with at least 50 individuals employed on a permanent basis in 6 or more of the preceding 12 months. Wis. Stat. § 103.10(1)(c).
Leave Amounts, Family Members, and Paid Leave
Federal law provides more total leave: up to 12 workweeks in a 12-month period for a birth or adoption, a family member’s serious health condition, or the employee’s own serious health condition. 29 U.S.C. § 2612(a)(1). The W-FMLA divides leave into categories and caps each one. It allows 6 weeks for birth or adoption, 2 weeks to care for a family member, no more than 8 weeks of family leave combined, and 2 weeks for the employee’s own serious health condition in a 12-month period. Wis. Stat. § 103.10(3)–(4).
The W-FMLA covers more relatives. In addition to a spouse, child, or parent, it covers a parent-in-law, a domestic partner, and a domestic partner’s parent. Wis. Stat. § 103.10(1) (f), (3)(b)3.
The biggest practical difference is paid leave. Federal law allows an employer to require employees to use accrued paid leave during FMLA leave. 29 U.S.C. § 2612(d)(2). Under the W-FMLA, the employee decides whether to substitute paid or unpaid leave of any other type the employer provides. Wis. Stat. § 103.10(5)(b). Wisconsin courts have read this right broadly. Aurora Med. Grp. v. Dep’t of Workforce Dev., 2000 WI 70, 236 Wis. 2d 616, 612 N.W.2d 646; Sieger v. Wis. Pers. Comm’n, 181 Wis. 2d 845, 512 N.W.2d 220 (Ct. App. 1994).
Enforcement and Deadlines
The deadlines differ sharply. A federal FMLA claim may be filed directly in court within two years, or three years for a willful violation, and may include liquidated (double) damages. 29 U.S.C. § 2617(a), (c). A W-FMLA claim generally begins with a complaint to the Equal Rights Division of the Department of Workforce Development, which must be filed within 30 days after the violation occurs or the employee should reasonably have known of it. Wis. Stat. § 103.10(12)(b). A later circuit court action is available under §103.10(13). Missing the 30-day window can forfeit the state claim, so employees should act quickly.
How the Two Laws Work Together
When leave qualifies under both laws, it generally runs concurrently and counts against both entitlements. But the laws are measured separately, so an employee who exhausts federal leave for one reason may still have state leave for another, and vice versa.
Seventh Circuit case law under the federal FMLA frames how these claims are litigated. An interference claim requires the employee to show eligibility, a covered employer, entitlement to leave, sufficient notice of the intent to take leave, and a denial of FMLA benefits. Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006); Pagel v. TIN Inc., 695 F.3d 622, 627 (7th Cir. 2012). The employee need not use the words “FMLA”; notice is sufficient if it gives the employer enough information to suggest a possible serious health condition. Burnett, 472 F.3d at 478–79. A retaliation claim, in contrast, focuses on whether the employer punished the employee for taking protected leave. Goelzer v. Sheboygan County, 604 F.3d 987, 995 (7th Cir. 2010), a Wisconsin case in which the court allowed both interference and retaliation claims to proceed.
The Bottom Line
Federal FMLA offers more weeks of leave and a longer time to sue. The W-FMLA reaches more employees and more family members and gives employees control over paid leave, but it comes with a very short 30-day complaint deadline. Employees denied leave or disciplined for taking it should evaluate both laws right away.
This article provides general information, not legal advice.
