Federal, state local laws differ on vital worker protections

Because federal, state and local governments, with some exceptions, can and do legislate in the area of employment law, the unwary employer may fall into the trap of incorrectly complying with only one. This article highlights a few, but certainly not all, of the differences that often confuse employers.

Family and Medical Leave Act (FMLA)

Federal and Wisconsin FMLA are mostly consistent in the reasons for which certain employees may be eligible to take unpaid family or medical leave. However, the amount of leave differs.

Federal law allows up to 12 weeks of leave for the following reasons:

• Birth of a child or placement of a child with the employee for adoption or foster care.
• Care of a child, spouse, or parent suffering from a serious health condition.
• Medical leave for an employee to care for a serious health condition that renders them unable to work.

Wisconsin law provides for up to six weeks of leave for birth or adoption, and up to two weeks of leave for medical care for the employee or their child, spouse or parent.

State and federal laws also differ in how leave is calculated. Federal law calculates the time over any 12-month period, including a calendar year, a fixed 12-month period or a rolling 12-month period. Wisconsin's leave is calculated over a calendar year.

Federal law allows an employer to require substitution of vacation time into the period of FMLA leave, but state law does not. However, the employee may voluntarily request substitution.

The disabilities act

The Americans with Disabilities Act and the disability provisions of the Wisconsin Fair Employment Act differ dramatically.

Under the ADA, there is no need to modify or reassign essential duties to other employees as a potential accommodation. Under the WFEA, the employer may have to modify essential functions. As stated by Wisconsin's Labor and Industry Review Commission, "(t)he 'essential functions of the job' analysis, which may be appropriate under the … ADA … is not employed in reviewing a disability accommodation issue under the Wisconsin Fair Employment Act."

Another difference comes when determining how much to accommodate a worker with a disability; for example, unsatisfactory behavior or performance caused by alcoholism.

Under the ADA, although alcoholism may be a disability, employers are still allowed to enforce rules concerning alcohol.

The ADA specifically states employers may prohibit employees under the influence of alcohol from reporting to work. Employers may also hold an employee with alcoholism problems to standard performance requirements.

Reasonable accommodations usually involve some type of leave to seek treatment, not leniency and forbearance for rule violations.

Under the WFEA, discipline for performance problems caused by a disability is treated as discipline "because of the disability itself." Hence, even if the employee is in violation of work rules, clemency and forbearance may be an accommodation that must be provided.

State and local laws

Finally, employers must be aware that both state and local laws also provide greater employee protections than federal law. For example, the WFEA prohibits discrimination based upon the additional protected categories of sexual orientation, use of lawful products and arrest and conviction records.

Arrest and conviction record discrimination is unlawful under the WFEA unless the circumstances surrounding the pending charge or conviction are "substantially related" to the circumstances of the particular job.

It is not employment discrimination to "refuse to employ" or to "suspend from employment" any person who has a pending criminal charge if the substantial relationship test is met.

It is also not employment discrimination to refuse to employ or to terminate a person who has a conviction record if the substantial relationship test is met.

The phrase "substantially related to the circumstances of the particular job" assesses whether tendencies and inclinations to behave a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed.

The focus is on the opportunity for criminal behavior, the reaction to responsibility and the character traits of the person.

For those working within the city of Madison, the Madison Equal Opportunity Ordinance bars discrimination for the additional protected categories of age (anyone over 18 years old; state and federal law protect over 40), source of income, less than honorable discharge, physical appearance, sexual orientation, political beliefs, familial status, student status, and arrest and conviction records.

The arrest and conviction category here differs from the WFEA in that it places a three-year limitation period on the substantially related defense. Employers may only consider these records if the individual has been placed on probation, paroled, released from incarceration, or paid a fine, for a felony, misdemeanor, or other offense during the prior three-year time period.

Scott Baumbach, Amy Bruchs and Farrah Rifelj are attorneys at Michael, Best & Friedrich.