Wisconsin Expands WFMLA to Include Domestic Partner Coverage
Wisconsin employers may not realize that a portion of the 2009 Wisconsin budget, which was signed into law on June 29, 2009, extends coverage under the Wisconsin Family Medical Leave Act ("WFMLA") to potentially many more of its employees. Effective immediately, qualified same-sex and opposite-sex unmarried couples may qualify for state family medical leave in certain instances which were not previously covered. Employers subject to the WFMLA should be aware of these changes and their impact on family medical leave.
Who Qualifies for WFMLA Domestic Partnership?
Beginning on August 3, 2009, individuals may register as domestic partners with the Register of Deeds if:
(1) The individuals are at least 18 years old and capable of consent;
(2) The individuals are not married to, or in a domestic partnership with, another individual;
(3) The individuals share a common residence;
(4) The individuals are not more closely related than second cousins, whether of the whole or half blood, or by adoption; and
(5) The individuals are the same gender.
Note that only same-sex couples may register as domestic partners with the Register of Deeds. Same-sex partners who do not register and opposite-sex partners may also qualify as domestic partners for the purposes of WFMLA if they meet the first three requirements, as listed above, and also satisfy the following:
(4) The individuals would not be prohibited from marriage due to blood relationship under Wisconsin law;
(5) The individuals consider themselves to be members of each other's immediate family; and
(6) The individuals agree to be responsible for each other's basic living expenses.
Because this second category is more subjective, employers will need to decide how they will determine whether an employee and his or her partner "consider themselves members of each other’s immediate family" and "agree to be responsible for each other’s basic living expenses." The legislation provides no guidance on how an employer is to determine whether these requirements are met.
What Family Leave Will be Available to Qualified Domestic Partners?
Prior to the enactment of the legislation, employers covered by the WFMLA were required to provide leave entitlement to qualified employees for the following qualifying events: (a) up to six weeks of unpaid leave for the birth or placement for adoption of a child; (b) up to two weeks of unpaid leave for the serious health condition of "family members"; and (c) up to two weeks of unpaid leave for the qualified employee’s own serious health condition. Family member was defined as spouse, child, parent and parent-in-law.
The new legislation expands coverage for unpaid leave related to care for the serious health condition of a qualified employee's domestic partner or the serious health condition of a domestic partner’s parent. Note that the new law does not extend leave rights for the serious health condition of a domestic partner’s child or for a domestic partner’s birth of a child or placement for adoption of a child.
In addition to the expanded rights under WFMLA, the new budget also grants domestic partners some limited privileges in medical settings. This includes certain visitation rights and consent rights.
Employers should immediately begin to update their policies to comply with these new leave requirements. In addition, the Department of Workforce Development has created a new poster which can be found at http://www.dwd.state.wi.us/dwd/posters.htm. It is also important to note that this new legislation does not affect federal FMLA leave.
If you have any questions regarding the changes to the Wisconsin Family Medical Leave Act, please don't hesitate to contact Robin Sheridan at 414-721-0469 or Carrie Turner at 414-721-0458. | 
