Boardman Law Firm

Budget Bill Grants Wisconsin FMLA Rights to Domestic Partners

Jennifer Mirus

On June 29, 2009, as part of the biennial budget bill, 2009 Wisconsin Act 28, Governor Doyle signed into law certain legal protections for individuals in Wisconsin who are in a "domestic partnership". One of the protections extended by the bill to individuals in both registered and unregistered domestic partnerships is certain rights under the Wisconsin Family and Medical Leave Act ("FMLA").

Employers with 50 or more employees are generally subject to both the federal and Wisconsin FMLAs. The federal and state laws differ significantly, but often run concurrently, and employers must provide employees with the rights that are more generous as between the two laws.

Under the Wisconsin FMLA, qualifying employees are generally entitled to job-protected leave in the following circumstances:

1. Up to six weeks of leave for the birth or placement for adoption of a child;
2. Up to two weeks for the employee's own serious health condition; and
3. Up to two weeks for certain family members of the employee.

The newly enacted Budget Act changes item 3. Prior to the Budget Act, an employee's right to take leave for a family member under the Wisconsin FMLA was limited to the employee's parent, parent-in-law, spouse, and children ("children" including natural, adopted, foster, stepchildren, and legal wards).

Under the new law, a qualifying employee has the right to take up to two weeks of family leave to care for his/her domestic partner or the parent of his/her domestic partner if that person has a serious health condition.

Definition of Domestic Partner

Under the new law, the definition of "domestic partner" is adopted from two separate statutes. In other words, there are two ways for an individual to become a domestic partner for purposes of the Wisconsin FMLA.

   Registered Domestic Partners. One method of establishing a domestic partnership is through the process of registering as domestic partners. A registered domestic partner is an individual who has signed and filed a declaration of domestic partnership in the office of the register of deeds of the county in which he or she resides. Individuals may first register as domestic partners on August 3, 2009. The criteria for forming a registered domestic partnership are:

1. Each individual is at least 18 years old and capable of consenting to the domestic partnership.
2. Neither individual is married to, or in a domestic partnership with, another individual.
3. The 2 individuals share a common residence. The individuals may be considered to share a common residence even if only one has legal ownership of the residence, one or both have one or more residences not shared with the other, or one of the individuals leaves the common residence with the intent to return.
4. The two individuals are not nearer of kin to each other than 2nd cousins, whether of the whole or half blood or by adoption.
5. The individuals are members of the same gender.

   Unregistered Domestic Partners. Individuals who are in unregistered domestic partnerships may also be entitled to FMLA rights under the new law. In this case, a domestic partnership is a relationship between two individuals that satisfies all of the following:

1. Each individual is at least 18 years old and otherwise competent to enter into a contract.
2. Neither individual is married to, or in a domestic partnership with, another individual.
3. The two individuals are not related by blood in any way that would prohibit marriage.
4. The two individuals consider themselves to be members of each other's immediate family.
5. The two individuals agree to be responsible for each other's basic living expenses.
6. The 2 individuals share a common residence. The individuals may be considered to share a common residence even if only one has legal ownership of the residence, one or both have one or more residences not shared with the other, or one of the individuals leaves the common residence with the intent to return.

There is no requirement that domestic partners satisfying these criteria register their status as a domestic partnership. It is also important to note that unregistered domestic partners can be either same gender or opposite gender partners, whereas registered domestic partners must be of the same gender.

The domestic partner leave entitlements may create some difficult substantiation issues for employers, especially in the case of unregistered domestic partnerships. It may prove difficult, for example, for employers to establish that two individuals claiming to be domestic partners "consider themselves to be members of each other's immediate family" and "agree to be responsible for each other's basic living expenses."

No Right to Care for Domestic Partner's Child

The new law does not grant an employee the right to take leave for the child of the employee's domestic partner. Thus, the Wisconsin FMLA still does not afford an employee the right to take FMLA leave to care for a domestic partner's child with a serious health condition or for bonding time following birth or adoption of the domestic partner's child.

An employee may nevertheless have the right to such leave under the federal FMLA. Under the federal law, an employee has the right to take leave for a child for whom the employee stands "in loco parentis." A person stands in loco parentis if he or she exercises daily responsibilities to care for and financially support a child. "In loco parentis" status may exist without a biological or legal relationship between the putative parent and the child. Thus, if a qualified employee seeks to take FMLA leave in regard to a natural or adopted child of the employee's domestic partner, an analysis should be done to determine whether such leave qualifies as FMLA leave. In addition, employers may always choose to grant rights that are more generous than required by the FMLA.

Legal Challenge--What Should Employers Do Now?

A lawsuit was filed on July 23 challenging the constitutionality of the domestic partner law in light of Wisconsin's constitutional ban of gay marriage. We will keep you apprised of the status of this issue. For now, employers need to update their FMLA policies and forms to reflect domestic partner leave rights.

If you need any assistance with needed policy or form changes, or navigating your FMLA administration in general, do not hesitate to contact Boardman's Labor and Employment team.