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Wisconsin FMLA Expanded to Cover Domestic Partners

Labor & Employment Alert Mike Fischer

On June 29, 2009, Governor Doyle signed Wisconsin's budget bill, which amended the Wisconsin Family and Medical Leave Act ("Wisconsin FMLA") to cover same-sex and opposite-sex domestic partners. All employers with at least 50 employees inside or outside Wisconsin should become familiar with these changes and revise their policies accordingly.

The budget bill added a definition of "domestic partner" to the Wisconsin FMLA. The bill defines domestic partner to include (1) same-sex couples who register in their county of residence and (2) same-sex and opposite-sex couples who are not required to register. To qualify as registered domestic partners, two individuals must meet the following criteria:

  1. They must be at least 18 years of age and capable of consenting to the relationship;
  2. They may not be married to, or in a domestic partnership with, another individual;
  3. They must share a common residence;
  4. They must not be more closely related than second cousins - whether of the whole or half blood or by adoption; and
  5. They must be members of the same sex.

The couple must apply to form a domestic partnership with the clerk in the county in which they reside and must file a declaration of domestic partnership with the register of deeds.

Alternatively, to qualify as domestic partners without registration, the couple must meet requirements 1-3, above, in addition to the following:

  1. They must not be related by blood in a way that would prohibit marriage under Wis. Stat. § 765.03;1
  2. They must consider themselves to be members of each other's immediate family; and
  3. They must agree to be responsible for each other's basic living expenses.

Under the amended Wisconsin FMLA, covered employers must provide up to two weeks of family leave to employees, to care for their domestic partners (who can be either same-sex or opposite-sex partners) or to care for their domestic partners' parents. Under the law, Wisconsin employers with 50 or more employees must provide the following family leave:

  • Up to six weeks of unpaid leave to an eligible employee for the birth of a child or placement of an adopted child;
  • Up to two weeks of leave for an eligible employee's own serious health condition; and
  • Up to two weeks of leave for an eligible employee to care for the employee's child, spouse, domestic partner or parent who has a serious health condition.

While the term "parent" now includes a parent of the employee's domestic partner, the term "child" does not include the children of the employee's domestic partner. As a result, an employee is not entitled to take Wisconsin FMLA leave to care for a domestic partner's child with a serious health condition.

Wisconsin joins a short list of states with "mini-FMLA" laws that now offer leave rights to employees to care for domestic partners or their children. These include California, Connecticut, Maine, New Jersey, Oregon and Vermont.

The Wisconsin Department of Workforce Development, which administers the Wisconsin FMLA, has not yet issued a new poster, although one is expected. Covered employers should immediately begin allowing leave in compliance with these new requirements. Employers should also update their policies to reflect these changes. Questions on the expansion of the Wisconsin Family and Medical Leave Act should be directed to Pam Ploor at (414) 277-5661 /, Mike Fischer at (414) 277-5639 / or your Quarles & Brady attorney.

1 Wis. Stat. § 765.03 bars marriage when an individual is already married; when the couple is related closer than second cousins (unless they are first cousins and the woman is at least 55 years old or submitted an affidavit swearing to the woman's being permanently sterile); when either individual is incapable of agreeing to marriage; or, when either individual was granted a judgment of divorce less than six months ago.