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School Conference and Activities Leave
Following Public Hearing on February 17, 2010
 
Very few people would dispute the premise that parental involvement in a child’s education contributes greatly to the academic and social success of that child.  Parents can be involved in many ways, from reading to their child and working with them on homework, to setting high academic standards and participating in school activities, from attending parent-teacher conferences to participating in fundraising and booster activities.  Communication between a child’s parents and teachers is certainly key to monitoring the student’s performance and identifying and resolving problems.  School activities are not limited to daytime hours; in fact, a majority of schools conduct parent/teacher conferences during both day and evening hours to accommodate working parents.  There are many ways in which parents and teachers can communicate and that parents can be involved in their child’s school and activities; however, legislation is not necessary.
 
PENDING LEGISLATION
Companion bills introduced in both the Wisconsin Assembly and Senate would expand the existing Wisconsin Family and Medical Leave Act (FMLA) to permit employees to take 16 hours of leave per year to participate in school activities and conferences. As initially proposed, AB 116 and SB 86 would require employers with fifty or more workers to provide parents with leave that may be taken to attend school conferences or classroom activities relating to the employee’s child that cannot be scheduled during nonworking hours.  Leave also may be taken to observe and monitor the day care, preschool, or pre-kindergarten services or programming received by an employee’s child, if that observation and monitoring cannot be scheduled during nonworking hours.  Employees would not receive wages or salary when taking this leave; however, employees would be able to substitute paid or unpaid leave provided by the employer in increments of not less than one hour.  Further, employees would be required to make a reasonable effort to schedule the conference or activity so that it does not unduly disrupt the employer’s operations and must give the employer advance notice of the conference or activity in a reasonable or practicable manner.
 
Assembly Bill 116
AB 116, which contained the above provisions, was introduced on March 4, 2009 and was approved by the Assembly Committee on Education by a vote of 7-5 on September 8, 2009.  However, three amendments to the bill were offered and adopted on January 28, 2010.  The amendments address the key issues of eligibility for leave, the open-ended use of leave, and the substitution of paid sick leave for school and activities leave. 
 
  • Assembly Amendment 1 deletes the provision of the bill that would permit any employee to take school conference and activities leave. Under the amendment, the employee must be employed by the employer for more than 52 consecutive weeks and have worked for the employer for at least 1,000 hours during the preceding 52-week period in order to take school conference or activities leave.  This is consistent with the requirement to be eligible for family and medical leave.  The amendment also permits an employer to require an employee to provide documentation from his or her child’s school, child care provider, preschool, or pre-kindergarten stating that the employee was attending a school conference or classroom activity, or was observing services or programming of a child care provider, preschool, or pre-kindergarten, during that period of leave.
  • Assembly Amendment 2 provides that an employee may not use school conference or activities leave to accompany an outing or field trip of a school, child care provider, preschool, or pre-kindergarten.
  • Assembly Amendment 3 revises the bill to provide that paid sick leave may not be substituted for school conference and activities leave for any length of time.  After the third amendment was offered, the bill went to a vote and the Assembly Education Committee approved the bill by a margin of 52 to 44.  The bill is now pending before the Senate Committee on Children and Families and Workforce Development.
Senate Bill 86
SB 86, which was introduced on February 25, 2009, contained the same provisions as the original Assembly bill, including the requirement that any employee be eligible for the leave and that there are no restrictions on what type of school activities the leave could be used for (e.g., school field trips). 
 
However, nearly one year later, following a public hearing on February 17, 2010, an amendment was offered on February 26, 2010, to modify the bill to make it consistent with the Assembly version.   Specifically,  the amendment provides that leave may not be taken for a school outing or field trip and employees would be required to provide documentation of the leave.  The  amendment  would also impose the same eligibility requirements of the Wisconsin FMLA (e.g., be employed for 52 consecutive weeks by the same employer and work at least 1,000 hours in the preceding year). 
 
ANALYSIS
While these bills may sound good for employees and their relationship with their children, this mandate places another burden on Wisconsin employers, particularly during these difficult economic times and significant levels of unemployment.  This legislation also would result in reduced productivity, another burden for employers who are operating with lean staffing levels.  As written, the bill would provide employees with up to 16 hours of leave.  At first glance, this sounds reasonable.  However, if just 500,000 eligible employees in Wisconsin took just half of that time—8 hours—it would equal 4 million hours of lost productivity per year.  Even if half of those employees (250,000) took only 4 hours of leave, the result would still be 1 million hours of lost productivity. 
 
Issues and Questions
There are already compliance issues under the Wisconsin FMLA, which would be exacerbated by this law, as well as a number of other unresolved questions raised by this legislation:
  1. Due to Wisconsin’s generous substitution rule, an employee can substitute any other form of paid or unpaid accrued leave (except for paid sick leave as proposed in  the bill amendments) to which he/she is otherwise entitled, which would potentially add more leave time for Wisconsin FMLA medical leaves.  Substitution is an on-going complication for employers due to differences in state and federal law.  Further, substitution in Wisconsin can be made regardless of accrual and earned concepts.  This creates confusion for both employers and employees.
  2. The difference between state and federal law makes this area extremely difficult to administer.  How would an employer manage around these intermittent leaves?  What does unduly disruptive mean?  It will almost always be disruptive for employees to leave in the middle of the day for an hour or two.  Under the state FMLA, employees are only required to provide a sufficiently definite and advance notice so as to permit the employer to schedule replacement workers.   They are not strictly obligated to work with the employer to schedule such absences at a mutually convenient time (subject to the approval of a healthcare provider).  The federal FMLA, by contrast, requires employees and employers to collaborate regarding the scheduling of foreseeable/planned leave, subject to the approval of the healthcare provider.  In fact, an employer can require a 30 day advance notice under federal law and this is also generally applicable under Wisconsin law.   Under the federal law, employers and employees necessarily work together to arrive at an agreed-upon schedule, subject to the approval of the health care provider.  Under state law, by contrast, the employee is permitted to arrive at the schedule independently, and the employer is simply required to acquiesce.
  3. Intermittent leaves are always a compliance problem for employers for additional reasons:  how long is the leave supposed to last, when is an employee supposed to return from leave and how can an employer effectively plan for intermittent leaves as well as return from the leaves?  How does an employer verify the need for, and the length of, a conference? How does an employer manage abuses?
  4. Further complications arise from the breadth of the permitted leave.   What if the employee wants to sit in and observe the child’s classroom, attend a play, or simply volunteer to help out in the child’s classroom?  Are all of these covered “activities?”  Is the employer required to just say, “Sure, the employee can have time off for any reason to go to the child’s school or day care provider?”
  5. Also, as proposed, the law would apply to day care centers as well as schools.  How would this apply?  Parents would be able to take time off of work to watch their children play?
As you can see, the ramifications of this bill involve more than simply providing some time off for working parents to more fully participate in their child’s school activities.
 
If you have any questions or comments regarding this legislation, or any other employment or labor law matter, please call me at 414-423-1330 or send an e-mail to me at tpk@kclegal.com
 
Thomas P. Krukowski, Esq.
Krukowski & Costello, S.C.
http://www.krukowski.com/
 
Legislative Partner

Krukowski &
Costello
 
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Margie Harvey

Margie Harvey, SPHR
Miles Kimball Company 
250 City Center
Oshkosh, WI  54906
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Fx: 920.231.1247   
Em: mharvey@mileskimball.com

 
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