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Wisconsin Extends FMLA Benefits to Include Domestic Partners
August 4, 2009

When Governor Doyle signed the 2009-2011 biennial budget on June 29, 2009, several basic legal protections previously available only to married couples were made available to same-sex couples. Among these legal protections is the right to exercise leave under Wisconsin’s Family and Medical Leave Act (“WFMLA”) in order to care for a domestic partner or the parent of a domestic partner. Same-sex couples will be able to identify themselves as domestic partners either through a county registry, which will be available beginning August 3, or through satisfying qualifications for an “unregistered” domestic partnership.

In addition to the right to WFMLA leave, registered domestic partners will receive 39 other rights previously reserved to married couples. These rights include hospital visitation, ability to file a wrongful death suit, spousal payments available under worker’s compensation law, ability to inherit a partner’s estate, and immunity from testifying against a domestic partner.

Leave Rights Under the WFMLA Are Expanded to Domestic Partners

The WFMLA requires employers with 50 or more employees to provide leave to eligible employees under the following circumstances: (a) 2 weeks of unpaid leave to care for certain family members suffering from a serious health condition; (b) 2 weeks of unpaid leave for the employee’s own serious health condition; and (c) 6 weeks of unpaid leave for the birth or placement of a child.

Previously, the term “family members” was defined as parents, parents-in-law, spouses, and children (including adopted children, foster children, stepchildren and legal wards). “Family members” now includes a domestic partner and the parents of an employee’s domestic partner. However, the term “child” does not include the children of the employee’s domestic partner. Thus, an employee may take WFMLA leave to care for his or her domestic partner or the parent of the domestic partner but not to care for the child of a domestic partner. Even if the employee is jointly raising the child alongside the employee’s own biological (or adoptive) children, the employee cannot take WFMLA leave if he or she is not the legal parent of the child.

Who Qualifies As A Domestic Partner?

Employees can exercise the rights under the WFMLA as either a registered or unregistered domestic partner. Starting on August 3, partners can register as domestic partners with the Register of Deeds in their county of residence. Registered domestic partners must demonstrate or attest to the following:

  • Each individual is at least 18 years old and capable of consenting to the domestic partnership;
  • Neither individual is married or in a domestic partnership with another individual;
  • The two individuals share a common residence;
  • The two individuals are not nearer kin than second cousins; and
  • The individuals are of the same gender.

In order to exercise WFMLA rights as an individual in an unregistered domestic partnership, the employee must show that he or she (and his/her partner) satisfy the following criteria:

  • Each individual is at least 18 years old and otherwise competent to enter into a contract;
  • Neither individual is married or in a domestic partnership with another individual;
  • They share a common residence;
  • They are not related by blood in any way that would prohibit marriage under Wisconsin law;
  • They consider themselves to be members of each other’s immediate family; and
  • They agree to be responsible for each other’s basic living expenses.

While registered domestic partnership is reserved for individuals in a same-sex relationship, unregistered domestic partners can be in either a same sex or opposite sex relationship.

Unresolved Questions Regarding Domestic Partnerships

Neither registered domestic partnerships nor unregistered domestic partnerships require that there be a romantic component to the relationship. The language of this legislation does not provide for any method by which this can be determined. Moreover, the budget bill neither grants nor denies authority to a county to require a certification by the individuals that their relationship is of a romantic nature. Thus, it is possible that mere roommates could qualify for either a registered domestic partnership or an unregistered domestic partnership.

The unregistered domestic partnership also is problematic in that it does not set forth how an employer can determine whether two individuals “consider themselves to be members of each other’s immediate family.” Additionally, employers are not given any guidance as to how they can determine that two individuals have agreed to be responsible for each other’s basic living expenses.

How Employers Should Respond

Because the budget bill containing the WFMLA amendments was effective as of June 29, employers subject to the WFMLA must immediately begin providing leave to employees seeking to care for an unregistered domestic partner or his or her partner’s parent. Once county registries have been established, employers must also provide such leave for registered domestic partners.

In order to facilitate these requests, employers should update their policies and leave request forms. Employers should also create a method by which they can certify or document whether an employee is in an unregistered domestic partnership. Employers should require the employee seeking leave to prove or certify that the two individuals share a common residence, consider themselves to be members of each other’s immediate family, and agree to be responsible for each other’s basic living expenses. Although there is no immediate requirement that the Department of Workforce Development create a new poster addressing these changes to the WFMLA, we will continue to keep you informed as to if, or when, revised posters are issued. Please feel free to contact your Davis & Kuelthau attorney if you would like assistance in updating your policies and forms, or in creating the documents necessary to accommodate this change to the WFMLA.

If you have questions regarding the information in this article please contact your Davis & Kuelthau attorney.

 

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