AB200: Bill Text

1995 Assembly BILL 200

March 13, 1995 - Introduced by Representatives Klusman, Goetsch, Gard, Vrakas, Walker, Prosser, Ainsworth, Brancel, Duff, Green, Grothman, Hoven, Huebsch, Jensen, Kreibich, Ladwig, F. Lasee, Lehman, Nass, Olsen, Ott, Owens and Ward, cosponsored by Senators Leean, Rosenzweig, Buettner, Drzewiecki, Farrow, Petak and Schultz. Referred to Committee on Labor and Employment.

AB200,2,2 An Act to repeal 103.10 (3) (a) 2., 103.10 (3) (a) 3., 103.10 (3) (b) (intro.), 103.10 (3) (c), 103.10 (3) (d), 103.10 (4) (title), 103.10 (4) (b), 103.10 (4) (c), 103.10 (12) (c), 103.10 (13), 103.10 (14) (b), 252.17 (3) (i), 252.17 (4) (c) and 893.96; to renumber 103.10 (3) (b) 3.; to renumber and amend 103.10 (3) (a) 1., 103.10 (3) (b) 1., 103.10 (3) (b) 2., 103.10 (4) (a), 103.10 (7) (c) and 103.10 (14) (a); to amend 103.10 (1) (a) (intro.), 103.10 (1) (a) 2., 103.10 (1) (b), 103.10 (1) (c), 103.10 (1) (d), 103.10 (1) (f), 103.10 (1) (g) (intro.), 103.10 (1) (g) 2., 103.10 (2) (c), 103.10 (3) (title), 103.10 (5) (a) and (b), 103.10 (6) (a), 103.10 (6) (b) (intro.), 103.10 (6) (b) 1., 103.10 (6) (b) 2., 103.10 (7) (a), 103.10 (7) (b) 4., 103.10 (8) (a), 103.10 (8) (b), 103.10 (9) (b), 103.10 (12) (b), 103.10 (12) (d), 111.322 (2m) (a), 111.322 (2m) (b), 252.17 (4) (a) and 632.897 (6); to repeal and recreate 103.10 (8) (c), 103.10 (9) (c), 103.10 (9) (d), 103.10 (10) and 103.10 (11) (c); and to create 103.10 (1) (fm), 103.10 (3m), 103.10 (4g), 103.10 (5) (c), 103.10 (7) (b) 3m., 103.10 (7) (b) 5., 103.10 (7) (b) 6., 103.10 (7) (b) 7., 103.10 (7) (c) 2., 103.10 (7) (d), 103.10 (7) (e), 103.10 (8) (d), 103.10 (8) (e), 103.10 (11) (d), 103.10 (12) (e), 103.10 (12) (f), 103.10 (12) (g), 103.10 (15) and 103.10 (16) of the statutes; relating to: various changes to the family and medical leave law and granting rule-making authority.

Analysis by the Legislative Reference Bureau

This bill makes various changes to the Wisconsin family and medical leave law to conform that law to the recently enacted federal family and medical leave law.

Leave requirement

Under current law, an employer, including the state, that employes at least 50 individuals on a permanent basis must permit an employe to take 6 weeks of family leave in a 12-month period and 2 weeks of medical leave in a 12-month period. This bill requires an employer, including the state, that employs at least 50 individuals for each working day for 20 or more weeks in the current or preceding year to permit an employe to take 12 weeks of family or medical leave in a 12-month period.

Under current law, to be eligible to take family or medical leave, an employe, other than a parent, spouse or child of the employer, must have been employed by the same employer for more than 52 consecutive weeks and have worked at least 1,000 hours for that employer during the preceding 52-week period. Under the bill, to be eligible to take family or medical leave, an employe, including a parent, spouse or child of the employer, must have been employed by the employer from whom the leave is requested for at least 12 months and have worked at least 1,250 hours for that employer during the preceding 12-month period. The bill excludes from coverage under the family or medical leave law an employe who works at a worksite with fewer than 50 employes if the employer employs fewer than 50 employes within 75 miles of the worksite. The bill also specifies that the leave must be taken to care for the child.

Under current law, an employe may take family leave for the birth or adoptive placement of the employe's child, if the leave begins within 16 weeks after the birth or placement. This bill permits an employe to begin family leave within 12 months after the birth or placement of a child and permits family leave for a foster care placement as well.

Under current law, an employe may also take family leave to care for a child, spouse or parent, including a spouse's parent, who has a serious health condition. This bill eliminates family leave to care for a spouse's parent, but expands the definition of "child" to include an individual for whom the employe stands in the place of a parent without having formally adopted or assumed guardianship of that individual.

Under current law, an employe may take family leave as partial absence from employment, but must schedule that leave so that it does not unduly disrupt the employer's operations. This bill permits an employe to take leave intermittently or on a reduced-leave schedule, that is, a schedule under which the employe's hours per day or per week are reduced, for the birth or adoptive placement of a child only if agreed to by the employer. The bill also permits an employe to take leave intermittently or on a reduced-leave schedule when medically necessary due to a serious health condition of the employe or of a child, spouse or parent.

Under current law, an employe with a serious health condition and the employer may agree to alternative employment for the employe while that condition lasts. This bill permits an employer to require an employe who requests intermittent leave or leave on a reduced-leave schedule that is foreseeable for planned medical treatment for the employe or for a child, spouse or parent to transfer temporarily to an alternative position that has equivalent pay and benefits and that better accommodates the employe's intermittent leave or leave on a reduced-leave schedule.

Under current law, an employe is not entitled to pay while on family or medical leave. An employe may, however, substitute paid or unpaid leave of other types provided by the employer for family or medical leave guaranteed under current law. This bill specifies that an employe may elect, or an employer may require an employe, to substitute for family leave guaranteed by the bill paid vacation leave, paid personal leave or paid family leave provided by the employer that the employe has accrued. The bill also specifies that an employe may elect, or an employer may require the employe, to substitute for leave due to a serious health condition of the employe or of a child, spouse or parent paid vacation leave, paid personal leave or paid sick leave provided by the employer that the employe has accrued. An employer is not required, however, to provide paid sick leave when the employer does not normally provide that leave; that is, if an employer does not normally provide paid sick leave to care for a child, spouse or parent, the bill does not require an employer to provide that leave in that situation.

Under current law, if an employe intends to take leave for the birth or placement of a child or for planned medical treatment, the employe must give notice to the employer in a manner that is reasonable and practicable. This bill requires the employe to give 30 days' notice in those situations that are foreseeable, unless the birth or placement will take place, or the medical treatment will begin, within 30 days, in which case the bill permits reasonable and practicable notice.

Certification

Under current law, an employer may require an employe to obtain a 2nd opinion, at the employer's expense, concerning the certification provided by the employe's health care provider. Also under current law, if the employe has commenced an administrative proceeding regarding the alleged denial of leave due to a serious health condition of the employe or of a child, spouse or parent, and if the original certification and 2nd opinion differ, the department of industry, labor and human relations (DILHR) may appoint a health care provider to render a 3rd opinion, with the expense of obtaining that opinion to be shared equally by the employer and employe. This bill permits the employer to require the employe, prior to any administrative proceedings, to obtain a 3rd opinion, at the employer's expense, if the original certification and 2nd opinion differ. The employer and employe must jointly designate the 3rd opinion provider.

Employment and benefits protection

Under current law, upon the return of an employe from family or medical leave, an employer must place the employe in the position the employe held immediately before that leave began, if the position is vacant, or, if the position is not vacant, in an equivalent employment position having equivalent pay, benefits, and other terms and conditions of employment. This bill permits the employer to place a returning employe either in the employe's old position or in an equivalent position without regard to whether the old position is vacant. The bill specifies that to be reinstated, the employe must have actually taken the leave for the purpose for which it was intended. The bill also permits an employer to require an employe who is on leave to report to the employer periodically on the employe's status and intention of returning to work.

Under current law, an employer must maintain group health insurance coverage for an employe on leave under the conditions that applied immediately before the leave. This bill requires an employer to maintain that coverage at the level and under the conditions that the employer would have provided coverage if the employe had continued in employment.

Under current law, an employer may require an employe to place in escrow with the employer the premium for 8 weeks of group health insurance coverage and the employer may keep from that escrow account the amount that the employer paid for that coverage if the employe does not return from leave. This bill eliminates the escrow requirement, but permits the employer to recover those premiums if the employe does not return to work for reasons other than the recurrence, onset or continuation of a serious health condition or other circumstances beyond the employe's control.

Enforcement

Under current law, an employe who believes that his or her employer has violated the family or medical leave law may file a complaint with DILHR within 30 days after the employe knew or should have known of the violation. This bill extends that time limit to 300 days after the date of the last event constituting the alleged violation.

Under current law, an employe or DILHR may commence a civil action in circuit court to collect damages from an employer for a violation of the family or medical leave law. This bill eliminates civil actions for violations of the family and medical leave law.

Special provisions

Finally, the bill makes special provisions for certain classes of employes. If a husband and wife both work for the same employer, the employer may limit their combined leave to 12 weeks in a 12-month period. If a teacher begins leave within 5 weeks of the end of the semester, and the leave is of a certain duration depending on how close to the end of the semester the teacher would return to work, the teacher's employer may require the teacher to continue taking leave until the end of the semester. The bill also permits an employer to deny reinstatement following leave to an employe who is among the highest-paid 10% of the employer's employes if that denial is necessary to prevent substantial and grievous economic injury to the employer and if the employer so notifies the employe at the time the employer determines that the injury will occur, except that if the employe receives notice during the leave, the employe must agree not to return to work.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB200, s. 1 Section 1. 103.10 (1) (a) (intro.) of the statutes is amended to read:

AB200,5,4 103.10 (1) (a) (intro.) "Child" means a natural, adopted, foster or treatment foster child, a stepchild or a legal ward, or an individual for whom an employe stands in the place of a parent, to whom any of the following applies:

AB200, s. 2 Section 2. 103.10 (1) (a) 2. of the statutes is amended to read:

AB200,5,8 103.10 (1) (a) 2. The individual is 18 years of age or older and cannot care for himself or herself is incapable of self-care because of a serious health condition mental or physical disability.

AB200, s. 3 Section 3. 103.10 (1) (b) of the statutes is amended to read:

AB200,5,12 103.10 (1) (b) "Employe" means an individual employed in this state by an employer, except the employer's parent, spouse or child other than an individual described in 29 USC 203 (e) (2) (C) (i) and (ii) and (4), as amended to April 15, 1986.

AB200, s. 4 Section 4. 103.10 (1) (c) of the statutes is amended to read:

AB200,6,2 103.10 (1) (c) Except as provided in sub. (14) (b), "employer" "Employer" means a person engaging in any activity, enterprise or business in this state employing at least 50 individuals on a permanent basis for each working day during each of 20 or more calendar weeks in the current or preceding year. "Employer" includes 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. "Employer" also includes any person who acts, directly or indirectly, in the interest of an employer with respect to an employe and any successor in interest of an employer.

AB200, s. 5 Section 5. 103.10 (1) (d) of the statutes is amended to read:

AB200,6,9 103.10 (1) (d) "Employment benefit" means an insurance, leave or retirement a benefit which that an employer provides or makes available to an employe , including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits and pensions, regardless of whether those benefits are provided by a practice or policy of the employer or through an employe benefit plan, as defined in 29 USC 1002 (3).

AB200, s. 6 Section 6. 103.10 (1) (f) of the statutes is amended to read:

AB200,6,14 103.10 (1) (f) "Parent" means a natural parent, foster parent, treatment foster parent, adoptive parent, stepparent or legal guardian of an employe or an employe's spouse a person who stood in the place of a parent of the employe when the employe was a child.

AB200, s. 7 Section 7. 103.10 (1) (fm) of the statutes is created to read:

AB200,6,17 103.10 (1) (fm) "Reduced-leave schedule" means a leave schedule that reduces the usual number of hours that an employe works per day or per week.

AB200, s. 8 Section 8. 103.10 (1) (g) (intro.) of the statutes is amended to read:

AB200,6,21 103.10 (1) (g) (intro.) "Serious health condition" means a disabling physical or mental an illness, injury, impairment or physical or mental condition involving any of the following:

AB200, s. 9 Section 9. 103.10 (1) (g) 2. of the statutes is amended to read:

AB200,6,24 103.10 (1) (g) 2. Outpatient care that requires continuing Continuing treatment or supervision by a health care provider.

AB200, s. 10 Section 10. 103.10 (2) (c) of the statutes is amended to read:

AB200,7,7 103.10 (2) (c) This section only applies to an employe who has been employed for at least 12 months by the same employer for more than 52 consecutive weeks from whom leave under sub. (3) is requested and who worked for the that employer for at least 1,000 1,250 hours during the preceding 52-week 12-month period. This section does not apply to an employe who is employed at a worksite at which the employer employs less than 50 employes if the total number of employes employed by the employer within 75 miles of that worksite is less than 50.

AB200, s. 11 Section 11. 103.10 (3) (title) of the statutes is amended to read:

AB200,7,9 103.10 (3) (title) Family Entitlement to leave.

AB200, s. 12 Section 12. 103.10 (3) (a) 1. of the statutes is renumbered 103.10 (3) (intro.) and amended to read:

AB200,7,14 103.10 (3) (intro.) In a 12-month period no an employe may take more than 6 12 weeks of family leave under par. (b) 1. and 2. for any one or more of the following reasons:

AB200, s. 13 Section 13. 103.10 (3) (a) 2. of the statutes is repealed.

AB200, s. 14 Section 14. 103.10 (3) (a) 3. of the statutes is repealed.

AB200, s. 15 Section 15. 103.10 (3) (b) (intro.) of the statutes is repealed.

AB200, s. 16 Section 16. 103.10 (3) (b) 1. of the statutes is renumbered 103.10 (3) (a) and amended to read:

AB200,7,22 103.10 (3) (a) The Because of the birth of the employe's natural child, if the leave is taken to care for the child and if the leave begins within 16 weeks of 12 months after the child's birth.

AB200, s. 17 Section 17. 103.10 (3) (b) 2. of the statutes is renumbered 103.10 (3) (b) and amended to read:

AB200,8,4 103.10 (3) (b) The Because of the placement of a child with the employe for adoption or as a precondition to adoption under s. 48.90 (2), but not both, or for foster care, if the leave is taken to care for the child and if the leave begins within 16 weeks of 12 months after the child's placement.

AB200, s. 18 Section 18. 103.10 (3) (b) 3. of the statutes is renumbered 103.10 (3) (c).

AB200, s. 19 Section 19. 103.10 (3) (c) of the statutes is repealed.

AB200, s. 20 Section 20. 103.10 (3) (d) of the statutes is repealed.

AB200, s. 21 Section 21. 103.10 (3m) of the statutes is created to read:

AB200,8,14 103.10 (3m) Spouses employed by same employer. If a husband and wife are entitled to leave under sub. (3) and are employed by the same employer, the employer may limit to 12 weeks during any 12-month period the aggregate number of weeks of leave that the husband and wife may take for the birth or placement of a child under sub. (3) (a) or (b) or to care for a parent who has a serious health condition under sub. (3) (c).

AB200, s. 22 Section 22. 103.10 (4) (title) of the statutes is repealed.

AB200, s. 23 Section 23. 103.10 (4) (a) of the statutes is renumbered 103.10 (3) (d) and amended to read:

AB200,8,21 103.10 (3) (d) Subject to pars. (b) and (c), an employe who has Because of a serious health condition which that makes the employe unable to perform his or her employment duties may take medical leave for the period during which he or she is unable to perform those the duties of the employe's position.

AB200, s. 24 Section 24. 103.10 (4) (b) of the statutes is repealed.

AB200, s. 25 Section 25. 103.10 (4) (c) of the statutes is repealed.

AB200, s. 26 Section 26. 103.10 (4g) of the statutes is created to read:

AB200,9,8 103.10 (4g) Leave taken intermittently or on a reduced-leave schedule. (a) An employe may not take leave under sub. (3) (a) or (b) intermittently or on a reduced-leave schedule unless agreed to by the employer. Subject to par. (b) and subs. (6) (b) and (7) (b) 5., an employe may take leave under sub. (3) (c) or (d) intermittently or on a reduced-leave schedule when medically necessary. If an employe takes leave intermittently or on a reduced-leave schedule, the employe's employer may not reduce the amount of leave under sub. (3) to which the employe is entitled by an amount that is beyond the amount of leave actually taken.

AB200,9,15 (b) If an employe requests intermittent leave or leave on a reduced-work schedule under sub. (3) (c) or (d) that is foreseeable for planned medical treatment, the employer may require the employe to transfer temporarily to an alternative position offered by the employer for which the employe is qualified if that alternative position has equivalent pay and employment benefits and if that alternative position accommodates intermittent periods of leave or leave on a reduced-leave schedule better than the employe's regular position does.

AB200, s. 27 Section 27. 103.10 (5) (a) and (b) of the statutes are amended to read:

AB200,9,19 103.10 (5) (a) This Except as provided in pars. (b) and (c), this section does not entitle an employe to receive wages or salary while taking family leave or medical leave.

AB200,9,24 (b) An employe may elect, or an employer may require an employe, to substitute, for portions of family leave or medical leave, paid or unpaid leave of any other type for any part of the leave provided under sub. (3) (a), (b) or (c), any paid vacation leave, paid personal leave or paid family leave provided by the employer that the employe has accrued.

AB200, s. 28 Section 28. 103.10 (5) (c) of the statutes is created to read:

AB200,10,6 103.10 (5) (c) An employe may elect, or an employer may require an employe, to substitute, for any part of the leave provided under sub. (3) (c) or (d), any paid vacation leave, paid personal leave or paid sick leave provided by the employer that the employe has accrued, except that an employer is not required to provide paid sick leave in any situation in which the employer would not normally provide paid sick leave.

AB200, s. 29 Section 29. 103.10 (6) (a) of the statutes is amended to read:

AB200,10,15 103.10 (6) (a) If an employe intends to take family leave for the reasons in under sub. (3) (b) 1. or 2. (a) or (b) that is foreseeable because of the expected birth or placement of a child, the employe shall, in a reasonable and practicable manner, give the employer advance notice of the expected birth or placement employe's intention to take that leave not less than 30 days before the date the leave is to begin, except that if the date of the birth or placement requires the leave to begin in less than 30 days, the employe shall provide notice to the employer in a reasonable and practicable manner.

AB200, s. 30 Section 30. 103.10 (6) (b) (intro.) of the statutes is amended to read:

AB200,10,21 103.10 (6) (b) (intro.) If an employe intends to take family leave under sub. (3) (c) or (d) because of the planned medical treatment or supervision of the employe or of a child, spouse or parent or intends to take medical leave because of the planned medical treatment or supervision of the employe, the employe shall do all of the following:

AB200, s. 31 Section 31. 103.10 (6) (b) 1. of the statutes is amended to read:

AB200,10,25 103.10 (6) (b) 1. Make a reasonable effort to schedule the medical treatment or supervision so that it does not unduly disrupt the employer's operations, subject to the approval of the health care provider of the child, spouse, parent or employe.

AB200, s. 32 Section 32. 103.10 (6) (b) 2. of the statutes is amended to read:

AB200,11,6 103.10 (6) (b) 2. Give the employer advance notice of the medical treatment or supervision employe's intention to take that leave not less than 30 days before the leave is to begin, except that if the date of the treatment requires the leave to begin in less than 30 days, the employe shall provide notice to the employer in a reasonable and practicable manner.