Employees FAQ 14

Does either the federal or Wisconsin Family and Medical Leave Acts apply to municipalities with less than 50 employees?

While it appears the answer is "no," this is not immediately apparent from reading the federal law and the state law is somewhat ambiguous on this matter. The federal Family Medical Leave Act (FMLA) applies to all local governments regardless of the number of employees employed. However, an employee is eligible for leave under the federal FMLA only if he or she is employed at a worksite where 50 or more employees are employed by the municipality within 75 miles of that worksite. Therefore, municipalities with less than 50 employees need not grant leave to their employees under the federal FMLA.

In Employees 294, the League opined that the Wisconsin FMLA applies only to municipalities and other employers employing at least 50 individuals on a permanent basis based on the reasoning below.

Application of the Wisconsin FMLA

The Wisconsin FMLA defines "employers" covered by the law as follows: "person[s] engaging in any activity, enterprise or business in this state employing at least 50 individuals on a permanent basis." Wis. Stat. sec. 103.10(1)(c).  Also, included in the definition of "employer" is "the state and any office, department, independent agency, authority, institution, association, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts." Id.

Nowhere in the definition of "employer" are cities, villages or municipalities expressly referred to. The second part of the definition covers the state and any offices, agencies and bodies in state government. A municipality is ordinarily not considered to be a state agency, office or body. Typically, cities and villages are considered local units of government independent from the state. They are often described as political subdivisions of the state. Indeed, none of the many definitions of "state" or "state agency" sprinkled throughout the statutes include or refer to cities, villages or municipalities. Likewise, none of the definitions of "municipality" within the statutes make reference to the state or state agencies. Therefore, it is the League’s opinion that cities and villages do not fit under the second part of the definition of "employer."

However, municipalities do appear to be covered by the first definition of "employer," which refers to any "person" engaging in any activity, enterprise or business in this state employing at least 50 individuals on a permanent basis. Under state law, the term "person" when used in the statutes includes "bodies politic or corporate." Wis. Stat. sec. 990.01(26). The phrase "bodies politic or corporate," according to Black's Law Dictionary, is a reference to municipal corporations. Moreover, secs. 66.0215(6), 44.0213(1) and 66.0216(7) provide that an incorporated city or village is a "body corporate and politic."  The interpretation of the term "person" within the definition of "employer" as including municipal corporations is also supported by the administrative rules implementing the Wisconsin FMLA which defines the term "person" to include "bodies politic or corporate." Wis. Adm. Code DWD 225.01(1)(j).

Based on the above, the League concluded that only municipalities employing at least 50 employees on a permanent basis are covered by the Wisconsin FMLA.

Local officials and staff in small municipalities need to bear in mind when calculating the number of employees employed by a municipality that the total must include the number of municipal utility and fire department employees, if any. In Galster v. Black River Falls Police Department, ERD Case No. 9100036 ( May 21, 1992) the Equal Rights Division found that utility employees and individuals serving as volunteer firefighters and providing emergency medical services for the city's fire department were city employees for purposes of determining whether the Wisconsin FMLA applied to the city. The agency rejected the city's argument that utility employees and fire department employees should be viewed as being employed by separate employers.