Category Archives: FMLA


By: Oyvind Wistrom

On August 28, 2018, for the first time in almost ten years,  the U.S. Department of Labor’s Wage and Hour Division (DOL) issued two new advisory opinion letters providing employers with guidance on the application of the Family Medical Leave Act (FMLA) to organ donors and a no-fault attendance policy.  While the advisory opinion letters are not binding authority or legal precedent, they signal DOL’s interpretation of the law and provide helpful guidance for employers in handing some interesting nuances of the law.

FMLA Protects Organ Donors

In one of the advisory letters, the DOL concluded that organ-donation surgery can qualify as a “serious health condition” under the FMLA, thus entitling an employee with up to 12 weeks of protected leave.  This is the case even if the employee was in good health before the donation and voluntarily elected to undergo the surgery.  The DOL reasoned that organ-donation surgery may require both “inpatient care” or “continuing treatment” and, therefore, meets the regulatory definitions of a serious health condition.  A serious health condition is defined as an illness or physical condition that requires inpatient care at a hospital.  Since the typical hospital stay after organ donation surgery is four to seven days, organ donation qualifies as a serious health condition.

No-Fault Attendance Policy under the FMLA

In another letter, the DOL addressed a company’s no-fault attendance policy and found that it did not violate the FMLA.  Under the company’s policy, employees accrued points for tardiness and absences, except for certain absences, including FMLA-protected leave.  The points remained on an employee’s record for 12 months, and the employer would extend that period for any time the employee was not in “active service,” such as during an FMLA leave.

The DOL concluded that “freezing” an employee’s attendance points while on FMLA leave did not violate the Act by denying a benefit to the employee who took FMLA leave.  The DOL reasoned that the FMLA does not entitle an employee to superior benefits because of FMLA leave, and the attendance policy placed the employee in the same position as if he or she had never taken leave.  The DOL cautioned, however, that employers must not treat FMLA leave different from other forms of leave.  Thus, the employer must “freeze” an employee’s attendance points for all similar types of leave.

This opinion letter highlights, first, that absences necessitated by an FMLA leave cannot be counted under a company’s no-fault attendance policy.  Additionally, an employer is not required to remove attendance points from an employee on FMLA leave where the employer has an “active service” component to their policy – as long as the company treats other employees on leave for other reasons the same (i.e., vacation, W.C. leave, etc.).




WHEN: May 23, 2018

8:00 a.m. – 12:00 p.m.

WHERE: Sheraton Milwaukee Brookfield Hotel

375 South Moorland Road

Brookfield, WI

Registration and a continental breakfast will be served beginning at 7:30 a.m.  Click here to register.

This COMPLIMENTARY half-day event will address the latest labor and employment topics impacting employers including:

  • Legal Updates – Labor, Employment and Worker’s Compensation
  • In Search of the Truth for Workplace Investigations: What are the Legal Pitfalls?
  • The Role of Human Resources in Protecting Company Information Before, During and After the Employment Relationship
  • Best and Worst Practices: Common Corporate, HR and Employment Policies that Hinder Employers’ Work Comp Claims and Create FMLA and Disability Law Nightmares
  • Stump the Chumps: Our panel of experts will address all of your burning employment questions

Register Now! Annual Compliance/Best Practices Seminar

WHEN: May 11, 2017

8:00 a.m. – 12:00 p.m.

WHERE: Sheraton Milwaukee Brookfield Hotel

375 South Moorland Road

Brookfield, WI

Registration and a continental breakfast will be served beginning at 7:30 a.m.  Click here to register.

This COMPLIMENTARY half-day event will address the latest labor and employment topics impacting employers including:

  • Annual Employment Law Update (including recent developments in immigration, the Affordable Care Act and white collar overtime regulations)
  • Social Media Pitfalls and Best Practices
  • FMLA Update – A Best Practices Review
  • Drafting, Enforcing and Litigating Confidentiality, Non-Solicitation and Non-Competition Agreements
  • Navigating the ADA, FMLA and Worker’s Compensation


By:  Jonathan T. Swain

February 13, 2017

In his recently published proposed biennial budget for fiscal years 2018 and 2019, Governor Walker has proposed to eliminate the Wisconsin Labor and Industry Review Commission (LIRC).  LIRC is an independent three member commission appointed by the Governor that currently handles all appeals of Administrative Law Judge (ALJ) decisions for unemployment compensation cases, worker compensation claims, as well as state fair labor standards cases and fair employment cases in the Equal Rights Division and public accommodation cases.  LIRC would be phased out over the next three fiscal years.

Presently, LIRC has the authority to affirm, overturn and remand ALJ decision in these areas.  LIRC decisions are appealable to the State’s circuit courts.

Under Governor Walker’s proposal, Worker Compensation ALJ decisions will be reviewable by the State Department of Administration, while jobless claims and Equal Right Division decisions will be Agency administrators.  In his budget statement, Governor Walker stated that the proposed elimination of LIRC will eliminate “an unnecessary layer of government” and will make this second layer of review decisions occur much more quickly.

Of course, this is a proposed budget and, as such, is subject to negotiation with the legislature and subsequent amendment.  Further, stakeholders in the business, labor and legal community have yet to weigh-in on the Governor’s proposal.  As this issue advances, we will keep you up to date and informed.

Wisconsin Mandates Leave for Organ and Bone Marrow Donation

By: Sally A. Piefer

Wisconsin law mandates a number of different leaves for employees, including family and medical leave. Effective July 1, 2016, Wisconsin joined the growing number of states which now require private employers to provide leave for employees who are bone marrow or organ donors. This new law warrants the attention of Wisconsin employers.

Many of the provisions of the donation leave follow Wisconsin’s Family & Medical Leave law (WFMLA). Like the WFMLA, the new law applies to employers with 50 or more employees. Employees are eligible for the leave if they have worked for the employer for at least 52 consecutive weeks and have worked at least 1,000 hours during that 52-week period. The law allows eligible employees up to 6 weeks of unpaid leave during a 12-month period, but employees may substitute other paid leave provided by the employer.

Employees are required to schedule the donation procedure so that it doesn’t unduly disrupt an employer’s operations, and must give the employer reasonable advance notice of the need for the leave. Employers can ask the employee to provide certification of the need for the leave, but this certification is limited to:

  1. Confirmation the donee has a serious health condition the necessitates a bone marrow or organ transplant;
  2. The employee is eligible and has agreed to serve as a bone marrow or organ donor for the donee; and
  3. The amount of time expected to be necessary for the employee to recover from the bone marrow or organ donation procedure.

In addition to providing the leave, employers must also maintain the employee’s group health insurance coverage under the same conditions as existed immediately before the leave began. If the employee makes his/her contribution to the group insurance coverage, the employer must also continue making its share of the premium payment.

Provided the employee returns to work within the 6 weeks allowed for donation leave, the employee must be reinstated to the same position held when the leave began, or if that position is no longer vacant, to an equivalent position “having equivalent compensation, benefits, working shift, hours of employment, and other terms and conditions of employment.”

There is nothing in the donation law which prohibits an employer from having donation leave run concurrently with an employee’s eligibility for FMLA or WFMLA. So if the bone marrow or organ donation also satisfies the definition of a “serious health condition,” the time taken for donation leave could also be counted for purposes of the FMLA and/or WFMLA. If, however, an employee’s allotment of FMLA and/or WFMLA has been exhausted – or the leave does not constitute a “serious health condition,” the employee is still eligible for up to 6 weeks of donation leave.

The law prohibits interference with or denial of leave and it also prohibits discrimination or retaliation against any employee who exercises his/her right to take the leave. The law also follows the WFMLA process in the event an employee feels that an employer has violated the law, including the ability to bring a civil action once the administrative process has been completed.

What should employers do now? While bone marrow and organ donation leave may not be frequent events, they are likely to become more common as advances are made in the medical community. To ensure your compliance, employers should take the following steps:

  1. Wisconsin employers with 25 or more employees should ensure that you have posted your policy on taking time off for bone marrow or organ donation.
  2. Wisconsin employers with 50 or more employees must:

For more information about the donor leave law or your general employment law needs, please contact Attorney Sally Piefer at (414) 226-4818 or or any of the other attorneys you work with here at Lindner & Marsack, S.C.


Please mark your calendar for Lindner & Marsack, S.C.’s Annual Compliance/Best Practices Seminar!

WHEN:         April 14, 2016

8:00 a.m. – 12:00 p.m.

WHERE:       Sheraton Milwaukee Brookfield Hotel

375 South Moorland Road

Brookfield, WI

This FREE half-day event will address current topics in labor, employment, benefits & worker’s compensation law and provide employers across industries with practical and creative solutions for addressing their toughest workplace legal challenges.


  • Labor Law Update: Including Recent NLRB Decisions, Right to Work and Collective Bargaining Trends
  • 2016 Employment Law Update
  • FMLA Update – A Best Practices Review
  • The Use of Temporary Workers in 2016 – A Panel Discussion
  • Update on Proposed Wisconsin Worker Compensation Act Reform
  • Winning Strategies in Defending Worker Compensation Cases – How to Avoid Early Mistakes in Investigating Claims

Watch your inbox as well as our Facebook, LinkedIn and Twitter pages for more detailed information about session topics and a link to register for this free seminar.

Department of Labor Modifies the Definition of Spouse under the Family and Medical Leave Act (FMLA)

On February 25, 2015 the Department of Labor published a final rule effective March 27, 2015 which modifies the definition of spouse under the FMLA to include individuals in same-sex and common law marriages based on the place of celebration.  The change was made in light of the United States Supreme Court’s decision in United States v. Windsor in which the Court struck down Section 3 of the Defense of Marriage Act (DOMA).

Prior to the rule change, the state of residence controlled whether or not the term spouse included same-sex or common law marriages.  The place of celebration rule provides consistent recognition and FMLA rights for all legally married same-sex and common law employees regardless of where they live.  The place of celebration rule also recognizes FMLA rights for individuals married outside the United States as long as one state in the United States would recognize the validity of the marriage.

Employers should be aware of a couple points:

  • Civil unions are not considered marriages under the federal FMLA. However, before denying FMLA to an employee in a civil union, the employer should look to any state law benefits that may apply. For instance, the Wisconsin FMLA allows leave to domestic partners. Also, some leave types may be allowed under “in loco parentis” rules.
  • The final rule on same-sex and common law marriage states an employee may establish the requisite family relationship either by a simple statement asserting the relationship, or by providing other documentation the employee chooses to provide such as a marriage license or court document. However, employers should not require more proof of the requisite relationship from a same-sex or common law marriage employee than it would of an employee in an opposite sex marriage.
  • The rule limiting FMLA leave for spouses working for the same employer applies equally to same-sex and common law marriages.
  • The rule regarding leave to care for a stepparent or stepchild is the same for same-sex and common law marriages as for opposite sex marriages.
  • Nothing in the change to the definition of spouse changes or invalidates the rules regarding leave based on an “in loco parentis” relationship.

If you have any questions about this, please contact Laurie Petersen at


By: John E. Murray

Last month the Department of Labor issued final regulations clarifying the right of eligible employees to take FMLA leave relating to military leave. These regulations take effect today. The relevant changes to the DOL’s prior regulations are:

  • FMLA leave is available for qualifying exigencies arising out of the active duty of the employee’s spouse, son, daughter, or parent, only when that active duty involves deployment to a foreign country.
  • Eligible employees may take leave to care for the parent of a military member if the parent is incapable of self – care and the care provided by the employee is necessary because of the military member’s active duty.
  • The amount of leave an employee may take to spend time with a military member on rest and recuperation leave has been expanded from 5 days to 15 days.
  • The spouse, son, daughter, parent, or next – of – kin of a military member, may take up to 26 work weeks of FMLA leave to care for a former service member who was discharged or released under conditions other than dishonorable discharge during the 5 years prior to the first day of leave.
  • The definition of serious injury or illness for a covered service member now includes conditions which existed prior to active duty which were aggravated in the course of active duty.
  • The list of healthcare providers authorized to complete a certification for service members has been expanded to include caregivers who are not affiliated with the Department of Defense, the Veterans’ Administration or TRICARE. Second and third opinions may be required for certifications provided by these healthcare providers.
  • Documentation of enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers can be sufficient certification if the employee also provides information about the military member’s familiar relationship to the employee, the military member’s discharge date and the military member’s status.

For employers who use the DOL’s forms, the Department has issued new forms for the leaves affected by these regulations. They are available from the DOL’s website. For employers who have developed their own forms, these changes will require modification only to the extent any of the current forms are inconsistent with the new regulations, or they fail to fullyadvise employees of their rights.

Finally, the Department of Labor has issued a new FMLA poster which incorporates the new regulations. You can view a copy of the poster by clicking: It also is available at
and local Wage and Hour District Offices.

If you have questions about whether your FML A forms require modification, please call John Murray at 414-226-4818, or call any other Lindner & Marsack attorney at 414-273-3910.


By: John E. Murray

Many employers have attendance policies under which employees accrue points or occurrences for unexcused absences and other attendance infractions. As employees accrue more points, they receive increasingly severe levels of discipline. However, after a certain period of time, generally 12 months, points are expunged from an employee’s attendance record for disciplinary purposes.

As the list of legally protected absences grows, employers have become frustrated that attendance points may drop off an employee’s attendance record even though the employee may have worked very little during the prior 12 months. To address this problem, some employers have modified attendance policies so that points are not expunged until an employee actually has worked 12 months since the point was accrued. In a decision issued last month, the United States Court of Appeals for the Seventh Circuit ruled these policies can apply to employees on FMLA leave.

On April 2, 2010, the Seventh Circuit decided Bailey v. Pregis Innovative Packaging. Under Pregis’ attendance policy, an employee who accrued 8 attendance points would be discharged. Attendance points were expunged from an employee’s record after 12 months of active work. It was not necessary for the 12 months to be consecutive. However, Pregis did not count any dates on which employees were absent, for any reason, toward this 12 month period. The Court ruled that this policy does not violate the FMLA because the Act explicitly states that employees on leave do not accrue additional benefits.

Based on Pregis, employers may want to consider modifying their attendance policies so that only those employees who actively work receive the benefit of having attendance points expunged from their attendance records. However, employers must be careful not to paint with too broad a brush. Some protected leaves, such as state and federal military leaves, allow employees to accrue benefits while they are absent. Employees on these types of leaves may be entitled to have points expunged from their attendance records during protected absences.

If you have questions about this decision, or proposed modifications to your attendance policy, please contact John Murray at Lindner & Marsack, S.C., (414) 226-4818.