Wisconsin FMLA-Leave Rights Now Extend to Domestic Partners

On June 29, 2009, Governor Jim Doyle signed into law the Wisconsin budget, which includes provisions to extend certain leave rights under the Wisconsin Family and Medical Leave Act (WFMLA) to domestic partners in same-sex and opposite-sex relationships. With the change, Wisconsin joins a short list of other states with laws extending family-leave rights to employees to care for domestic partners. Wisconsin public employers and private employers with 50 or more permanent employees are now required to provide WFMLA leave benefits to eligible workers to care for their domestic partners or the parents of their domestic partners. Let’s look at some of the specifics of the new law.

The law before the change
The WFMLA requires covered employers to provide leave to eligible employees for three types of WFMLA qualifying events. Eligible employees are individuals who have worked for the same employer for more than 52 consecutive weeks and who have worked or been paid for at least 1,000 hours in the 52-week period leading up to the leave. Each calendar year, eligible employees may take up to two weeks of leave for their own serious health condition or the serious health condition of a family member. Up to six weeks of leave may be taken for the birth of a child or the placement of a child for adoption, or as a precondition for adoption. Before the change to the law, “family member” was defined as:

• the employee’s child (including a stepchild, adopted child, foster child, or legal ward);
• the employee’s spouse (i.e., legal husband or wife); or
• a parent of the employee or of the employee’s spouse (including a natural parent, foster parent, adoptive parent, stepparent, or legal guardian).

Leave rights under the new law
The law now extends WFMLA leave benefits to eligible employees for the serious health condition of the employee’s domestic partner or the domestic partner’s parent. Employees are still unable to take WFMLA leave to care for a domestic partner’s child with a serious health condition or to bond with a domestic partner’s child following the birth or placement of a child for adoption. The exception is if the child is also the employee’s child as defined by statute (i.e., stepchild, adopted child, foster child, or legal ward).

Who is a ‘domestic partner’ under the WFMLA?
There are two categories of domestic partners eligible for leave benefits under the WFMLA: registered domestic partners (effective August 1, 2009) and unregistered domestic partners (effective June 30, 2009). There are several requirements domestic partners must meet to qualify, including:

• each person must be at least 18 years old and capable of consenting to a domestic partnership;
• neither individual can be married to or in a domestic partnership with another individual;
• they must share a common residence;
• they cannot be nearer in kin to each other than second cousins; and
• they must be of the same gender.

Domestic partnerships that meet and certify these requirements with the Register of Deeds for the county in which they reside are considered registered domestic partners eligible for WFMLA leave benefits.

Unregistered domestic partnerships have no registration requirements. Partnerships can involve individuals of the same or opposite sex and must satisfy the following requirements:

• each person must be at least 18 years old and competent to enter into a contract;
• neither individual can be married to or in a domestic partnership with another individual;
• partners must share a common residence;
• they cannot be related by blood in any way that would prohibit marriage under Wisconsin law;
• each partner must consider himself a member of the other’s immediate family; and
• they must agree to be responsible for each other’s basic living expenses.

The definition of “unregistered domestic partnership” will likely present some practical problems in administration of WFMLA leave benefits. For instance, how do you validate that two individuals consider themselves members of each other’s immediate family or that they agree to be responsible for each other’s basic living expenses?

What does it all mean?
Shortly after passage of the budget bill, a lawsuit was filed in the Wisconsin Supreme Court challenging the legality of the recognition of domestic partnerships in the context of Wisconsin’s 2006 constitutional amendment banning same-sex marriage. Nevertheless, for now, you should take action to comply with the changes to the WFMLA, extending benefits to both registered and unregistered domestic partners. Specifically, you should:

• update policies and handbooks to reflect the changes to the Act;
• establish requirements and adopt forms for use by employees to substantiate registered and unregistered partnerships; and
• post the Department of Workforce Development’s updated WFMLA poster in the workplace (available at www.dwd.state.wi.us/dwd/posters.htm).