Mental health conditions such as anxiety, depression, and panic attacks can qualify for FMLA leave in Wisconsin when the conditions meet the definition of a “serious health condition.” Both the Federal Family and Medical Leave Act (FMLA) and the Wisconsin Family and Medical Leave Act (W-FMLA) apply.
Eligibility to Take FMLA or W-FMLA Leave
Federal FMLA (FMLA) (up to 12 workweeks of unpaid, job-protected leave in a 12-month period):
• Worked for a covered employer for at least 12 months.
• Worked at least 1,250 hours in the 12 months before leave starts.
• Work at a location with 50 or more employees within 75 miles (public agencies and schools are covered regardless of size).
Wisconsin FMLA (W-FMLA) (2 weeks: runs concurrently with federal FMLA when both apply; provides additional or alternative protections for some workers):
• Employed by the same employer for more than 52 consecutive weeks
• Worked at least 1,000 hours in the preceding 52-week period
• Employer has 50 or more permanent employees (state/local government covered regardless)
Under W-FMLA, an employee may be eligible for up to 2 weeks of unpaid leave in a calendar year for a serious health condition. Federal FMLA’s longer entitlement – 12 weeks – usually provides more time when both apply. Leave may be continuous, intermittent, or on a reduced schedule when medically necessary.
A mental health condition qualifies as a serious health condition when an employee is receiving continuing treatment by a health care provider or it involves inpatient care at a hospital or treatment facility. The key is that the employee is unable to perform the essential functions of their job (or, for intermittent leave, causes periodic incapacity) due to the condition. The employer can (and almost always will) require medical certification from a health care provider.
Requesting FMLA/W-FMLA Leave
- Notify your employer as soon as practicable that you need leave for a serious health condition (you do not have to disclose the specific diagnosis upfront). For foreseeable leave, give 30 days’ notice if possible; for unforeseeable (e.g., sudden panic attack), notify as soon as you can.
- Employer responds (generally within 5 business days) with a Notice of Eligibility and Rights & Responsibilities and the medical certification form.
- Take the form to your treating provider (psychiatrist, psychologist, primary care doctor familiar with your condition, etc.) to complete. Return the completed certification.
- Employer designates the leave as FMLA/WFMLA-protected (or denies it with reasons) within 5 business days of receiving a complete certification.
- An employee can usually substitute accrued paid leave (vacation, sick, etc.) if your employer allows or requires it. Group health insurance continues under the same terms.
- Upon return to work, an employee is generally entitled to restoration to the same or an equivalent position.
An employee will not receive extra time off by “taking both” FMLA and Wisconsin FMLA leave for the same reason — the leaves run concurrently. When an absence qualifies under both the Federal FMLA and Wisconsin’s FMLA, the time counts against both entitlements at the same time. An employee will receive the more favorable protections from either law, but the total job-protected leave is generally capped at the longer Federal entitlement (up to 12 weeks).
Federal FMLA is the longer duration for an employee’s serious health condition (12 weeks juxtaposed to Wisconsin’s 2 weeks in a calendar year). However, there are still reasons the state law matters and why employers designate leave under both when possible. The main reasons W-FMLA provides value:
- Different eligibility rules: Wisconsin has a lower hour’s threshold (1,000 hours in the prior 52 weeks vs. federal 1,250 hours in the prior 12 months). Some part-time or newer employees qualify for the 2 weeks of WFMLA even if they do not meet federal eligibility.
- More employee-friendly rules on substituting paid leave: Under W-FMLA, an employee can choose to substitute almost any accrued paid leave (vacation, sick, etc.) for the unpaid FMLA time, even if the reason would not normally qualify for that paid leave under the employer’s policy whereas federal FMLA gives the employer more power to require substitution and is stricter about which paid leave can be used for which reasons.
- Broader family coverage: W-FMLA covers domestic partners and parents-in-law (and related situations) that federal FMLA does not. If the leave is to care for one of those individuals, only the state law may apply, or it can extend protections beyond federal limits.
- Different leave-year calculations and categories: W-FMLA uses a fixed calendar year. Federal FMLA lets the employer choose the method (calendar year, fixed year, rolling forward, or rolling backward). This timing difference can affect availability in some situations.
- Stronger legal protections available: For the overlapping period (the first 2 weeks on the employee’s own condition, for example), both laws apply, so the more generous notice, certification, substitution, intermittent-leave, or reinstatement rules control. After the Wisconsin entitlement is used up, only federal rules continue for the remaining time.
Consult an FMLA Mental Health Discrimination Attorney for Expert Guidance
When you are denied protections under FMLA/W-FMLA for a mental health condition or experienced discriminatory conduct or retaliation for requesting or after taking FMLA/W-FMLA leave, it is crucial to discuss your concerns with an expert FMLA employment law attorney as soon as possible. Contact the Law Offices of Alan C Olson & Associates for immediate assistance at 262-785-9606.
