On September 21, 2017, Governor Walker signed the 2017 budget into law (2017 Wis. Act 59) (the Budget Bill). One of the less obvious changes was modification of the Wisconsin Family and Medical Leave Act (WFMLA). Specifically, the Budget Bill restricts the establishment of domestic partnerships, which, in turn, limits an employee’s ability to utilize WFMLA leave for domestic partners.
Since 2009, the WFMLA has required employers with 50 or more employees to provide leave entitlements to eligible employees based upon three types of WFMLA-qualifying events: up to 6 weeks of leave for the birth or placement for adoption of a child, up to 2 weeks for the serious health condition of certain family members, and up to 2 weeks for the employee’s own serious health condition. An employee’s ability to take leave for a family member extended to parents, parents-in-law, spouses, domestic partners, domestic partner’s parents, and children (including stepchildren, adopted children, foster children, and legal wards) of either.
The WFMLA’s definition of a domestic partner was made via cross-reference to other sections of the Wisconsin Code. Effectively, a domestic partnership was formed in one of two ways: (1) via registration with the Register of Deeds for the county in which the employee resided; or (2) via informal satisfaction on the part of the employer that:
- 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 related by blood in any way that would prohibit marriage under the Wisconsin Code;
- The two individuals consider themselves to be members of each other’s immediate family; and
- The two individuals agree to be responsible for each other’s basic living expenses.
Registered domestic partnership is only available to same-sex couples. The latter, referred to as an unregistered domestic partnership, is available to opposite sex and same-sex couples. Thus, the WFMLA did mandate an employer would provide WFMLA protections for both opposite-sex and same-sex domestic partners. Since these rules were put in place, however, same-sex marriage has become recognized for all federal and Wisconsin law purposes.
Limitations on Domestic Partner Formation
The Budget Bill has modified the formation of domestic partner relationships substantially. Specifically,
- Wisconsin will cease accepting requests to register domestic partnerships effective April 1, 2018. Domestic partners who have registered their domestic partnership prior to this date will continue to have WFMLA rights.
- Wisconsin will cease recognizing unregistered domestic partnerships who are participants or beneficiaries of a Department of Employee Trust Funds (“Department”) benefit effective September 23, 2017. To continue receiving WFMLA rights, such domestic partners must affirm via an affidavit submitted to the Department by September 23, 2017 that they meet the legal requirements for a domestic partnership. Note that this change only affects public employers participating in a Department benefit. It appears that unregistered domestic partnerships between individuals who do not participate in Department benefits will no longer be recognized.
- As written, the Budget Bill immediately eliminates WFMLA rights for unregistered domestic partners who are not a participant or beneficiary of a Department benefit because the definition no longer recognizes such individuals as domestic partners. These individuals cannot submit an affidavit to the Department and, therefore, cannot satisfy the requirements of the domestic partner definition.
The Budget Bill does not prevent employers from providing WFMLA-like benefits beyond those required by the WFMLA. Consequently, employers who wish to continue to provide leave rights to unregistered domestic partners (who do not otherwise meet the legal definition) can do so. Similarly, employers wishing to limit domestic partner leave rights will need to modify their policies to address such limits.