Last September, the Wisconsin legislature updated the definition of domestic partner via the budget bill. While the intention of the modification to the definition was to stop allowing domestic partner health coverage state employees now that the state recognizes same sex marriage, it resulted in some unintended consequences.
Wisconsin FMLA (“WFMLA”), as you may know, provides coverage more broadly than federal FMLA. This includes extending the use of WFMLA to provide care for a domestic partner or their family members. To qualify as a domestic partner, an individual may be “registered” (meaning on the state registry) or “unregistered” (which means not on the state registry, but can demonstrate they are in a committed relationship with one another, among other things).
Registered domestic partnership is covered by Wis. Stat. ch. 770. To fall under this chapter, partners were required to register by April 1, 2018. Therefore, anyone that is not on the registry today cannot be added going forward.
Unregistered domestic partnership is defined by Wis. Stat. sec. 40.02(21c). To create an unregistered domestic partnership, individuals need to meet certain criteria. However, a recent addition indicates those unregistered domestic partners need to a submit an affidavit to the Department of Employee Trust Funds attesting to satisfying that criteria prior to September 23, 2017. See 2017 Wisconsin Act 59.
Here’s where it gets messy. WFMLA says a “’domestic partner’ has the meaning given in 40.02(21c).” Now sec. 40.029(21c) & (21d) require that to be considered unregistered domestic partners, they submitted an affidavit to the Department of Employee Trust Funds previous to 9/23/17. If you are in the private sector, it’s pretty unlikely your employees would have had reason to send the Department of Employee Trust Funds (which oversees public sector employees’ retirement accounts) an affidavit regarding their domestic partnership. So if no affidavit filed, means they can’t be considered “unregistered” domestic partners any longer. In turn, this means an employee in the private sector likely will no longer be able to take WFMLA for provide care for unregistered domestic partners or their family members.
So what does this mean?
If you have Wisconsin employees asking for WFMLA for domestic partners or their family members, you need to ask new questions:
1. Are you a registered domestic partner currently (meaning on the registry before 4/1/18)?
2. If you are not registered, did you file an affidavit as an unregistered domestic partner with the Department of Employee Trust Funds prior to 9/23/17?
If the answers to the above questions are no, then no WFMLA leave is provided. Employers certainly can choose to be generous and offer leave under a personal leave policy, but the protections under the law need not be afforded.