The Wisconsin Biennial Budget, signed into law on June 29, 2009, by Gov. Jim Doyle, contains provisions that extend the Wisconsin Family and Medical Leave Act (WFMLA) to domestic partners.

The WFMLA requires Wisconsin employers with 50 or more employees to provide unpaid leave to eligible employees as follows:

  • Up to six weeks for the birth or adoption of a child;
  • Up to two weeks for the care of a qualifying family member with a serious health condition; and
  • Up to two weeks for the employee’s own serious health condition.

To date, these entitlements have included leave to care for an employee’s child, spouse or parent. The new budget adds a category to this leave entitlement, however, and now permits employees to take leave for the serious health condition of a domestic partner or the domestic partner’s parent. Notably, the amendment does not include leave to care for a domestic partner’s child. As currently drafted, even if an employee is raising a child with his/her domestic partner, that employee cannot take WFMLA leave to care for that child unless he or she is the child’s legal parent.

I. Definitions

The budget creates two separate definitions for “domestic partner” – registered and unregistered partnerships. Both categories of domestic partners are eligible for the new benefits under the WFMLA.

Unregistered domestic partners must satisfy the following criteria:

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

Notably, unregistered domestic partners can be in either a same-sex or opposite-sex relationship.

Beginning on August 3, 2009, individuals could begin registering with the Register of Deeds in their respective counties of residence to qualify for a registered domestic partnership. Before the Register of Deeds will issue a declaration of partnership, the domestic partners must attest to the following:

  • Each individual is at least 18 years old and otherwise competent to enter into a contract;
  • Neither individual is married to, or in a domestic partnership with another individual;
  • The two individuals share a common residence.
  • The two individuals are not nearer of kin to each other than second cousins;
  • The individuals are members of the same sex.

II. Recommendations for Employers

Employers subject to the WFMLA should immediately update their applicable leave policies and forms to reflect the new definitions. In addition, the Wisconsin Department of Workforce Development (DWD) has issued a new informational poster that must be posted in the workplace. It is available through the DWD’s website at:

http://www.dwd.state.wi.us/dwd/publications/erd/pdf/erd_7983_p.pdf

It is important to remember that while the WFMLA now covers domestic partners, the Federal Family and Medical Leave Act does not yet provide similar benefits to same-sex couples. Employees whose leave requests extend beyond the two weeks provided in the WFMLA must satisfy the definitions of the Federal Statute to be eligible for additional leave.