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Maternity leave: can I take off three months?

By Johns, Flaherty & Collins, SC on Monday, March 26th 2018

maternity leave, FMLA

I’m expecting a baby in a couple months and want to take 12 weeks off from work after my baby is born. My employer says I can only take six weeks since I’ve only been with the company a year. She says I’ll lose my job if I insist on taking off three months. Is that legal?


At issue is whether you are covered under the federal or Wisconsin Family and Medical Leave Act (“FMLA”), according to attorney Ellen Frantz. “Not everyone is covered.” If you are not covered, generally it is up to your employer to decide how long of a maternity leave to provide.

Both the state and federal laws apply only to employers with 50 or more workers. If your employer does not meet this threshold, the law does not apply to you. As an employee, you must have worked at least 1,250 hours in the preceding 12 months to be covered under the U.S. law, or at least 1,000 hours in the previous 52 consecutive weeks under Wisconsin’s law. If you have worked less than a year, you are not covered even if your employer is large enough.

Benefits are different, too, but if both federal and state FMLA apply to you, the employer must apply them in the way most beneficial to you, the employee.

Federal law provides up to 12 weeks of unpaid leave in a 12-month period for a birth, adoption, or to care for sick parents. If you are covered by federal FMLA and have not taken FMLA leave for any other purpose during the 12 months, you could use the entire 12 weeks for a leave after the birth of your child.

In a 12-month period under the Wisconsin law, you may take up to six weeks for the birth or adoption of a child, but only two weeks for a serious health condition for a parent, child or spouse, or up to two weeks for your own serious health condition. Again, the leave is unpaid.

Keep in mind that the maximum during the 12 month period is 12 weeks; you cannot stack or add the two leave provisions to increase the amount of time. Often the issue is whether the employee has the option of applying accrued paid time off such as vacations to the unpaid leave. If the leave is under the Wisconsin FMLA, that is the choice of the employee, but if the leave is under the federal law the employer can require the employee to apply any paid leave to the unpaid time off. That means that you can’t take the 12 weeks of unpaid leave and save two weeks of paid vacation to use later in the year.

“How these two FMLA laws work together may seem confusing,” Frantz said. “But the law has been around long enough that most employers know how to deal with it.”

For more information on employment law in Wisconsin, contact us at 608-784-5678.

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