Category Archives: FMLA


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.