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Tamara Packard Earns Victory for Employee Rights

The Wisconsin Equal Rights Division has ruled that under Wisconsin's Family Medical Leave Act (WFMLA), the employer cannot impose use of WFMLA leave on the employee. Rather, it is the employee who decides whether and when to use medical leave under the WFMLA for a qualified illness or injury. Under the WFMLA, most Wisconsin employees are entitled to take up to a total of two weeks per year off work, unpaid, for their own or family members' serious medical conditions. They are protected from penalty (like write-ups and termination) for such absences.

The issue arose when Attorney Tamara Packard's client was injured and temporarily limited in her physical activities. The employer (a state agency), initially assigned work within the employee's limitations, but later decided it would no longer allow her to work while recovering. Its human resources staff unilaterally completed "for" the employee a request for time off under both the state and federal FMLA laws, without her approval or knowledge, granted the request, and sent the employee home until she could return 100% recovered. The employee did not wish to use her WFMLA leave for these absences.

The Equal Rights Division ruled that in completing and signing a form purporting to request WFMLA leave "for" the employee without her knowledge or consent, the employer violated the WFMLA by interfering with the employee's rights under the Act. It further violated the Act when it designated two weeks of involuntary medical leave as WFMLA leave that the employee had neither asked for nor agreed to.

The Equal Rights Division ordered the employer to "cease and desist from interfering with, restraining or denying" the exercise of the employee's WFMLA rights. It also ordered the employer to restore the imposed FMLA leave to the employee and pay the employee's legal fees and costs.

This decision is an important one for Wisconsin employee rights. More and more employers are trying to make their employees use state and federal family and medical leave for even run of the mill illness, resulting in less ability to take time off without penalty when faced with a true medical crisis. Similar challenges under the Federal Family Medical Leave Act have not been as successful, with courts generally ruling that when an employer imposes federal FMLA against an employee's will, unless the employee does not have federal leave available to use later and is penalized for a health-related absence, there is "no harm" and therefore "no foul." The Wisconsin Equal Rights Division's decision rejected this approach. The decision is based on the unique language of the Wisconsin law and legal precedent interpreting that law. Wisconsin enacted its family medical leave law five years before the similar federal law was enacted, and its primary intent is to create employee leave rights.

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