LRB-1736/2
GMM:kmg&jlg:km
1997 - 1998 LEGISLATURE
March 11, 1997 - Introduced by Representatives R. Young, Vander Loop,
Morris-Tatum, Notestein, Baldwin, Black, Bock, Boyle, Carpenter, Cullen,
Krusick, Plale, Riley, Ryba and L. Young, cosponsored by Senators
Grobschmidt, Moen, Wirch, Clausing, Risser and Wineke. Referred to
Committee on Labor and Employment.
AB166,2,6
1An Act to repeal 103.10 (1) (a) 1. and 2., 103.10 (3) (a) 2., 103.10 (3) (a) 3., 103.10
2(3) (b) (intro.), 103.10 (3) (c), 103.10 (4) (title), 103.10 (4) (b), 103.10 (12) (c),
3103.10 (13) (b) 2., 103.10 (14) (b), 252.17 (3) (i) and 252.17 (4) (c);
to renumber
4103.10 (3) (b) 3., 103.10 (3) (d) and 103.10 (4) (c);
to renumber and amend
5103.10 (1) (a) (intro.), 103.10 (3) (a) 1., 103.10 (3) (b) 1., 103.10 (3) (b) 2., 103.10
6(4) (a), 103.10 (5) (b), 103.10 (7) (c) and 103.10 (14) (a);
to consolidate,
7renumber and amend 103.10 (13) (b) (intro.) and 1.;
to amend 103.10 (title),
8103.10 (1) (c), 103.10 (1) (d), 103.10 (1) (f), 103.10 (1) (g) (intro.), 103.10 (1) (g)
92., 103.10 (2) (a), 103.10 (2) (c), 103.10 (3) (title), 103.10 (5) (a), 103.10 (6) (a),
10103.10 (6) (b) (intro.), 103.10 (6) (b) 1., 103.10 (6) (b) 2., 103.10 (7) (a), 103.10 (7)
11(b) 4., 103.10 (8) (a), 103.10 (8) (b), 103.10 (9) (a), 103.10 (9) (b), 103.10 (10),
12103.10 (12) (b), 103.10 (12) (d), 103.10 (13) (a), 108.04 (1) (b) 3. (intro.), 111.322
13(2m) (a), 111.322 (2m) (b), 111.91 (2) (f), 230.35 (2m), 252.17 (4) (a) and 632.897
14(6);
to repeal and recreate 103.10 (8) (c), 103.10 (9) (c), 103.10 (9) (d), 103.10
1(11) (c) and 893.96 (title); and
to create 103.10 (1) (fr), 103.10 (4g) (title), 103.10
2(4m), 103.10 (5) (b) 2., 103.10 (6) (c), 103.10 (7) (c) 2., 103.10 (7) (d), 103.10 (7)
3(e), 103.10 (8) (d), 103.10 (11) (d), 103.10 (12) (e), 103.10 (12) (f), 103.10 (12) (g),
4103.10 (13) (c), 103.10 (15), 103.10 (16) and 230.35 (2n) of the statutes;
relating
5to: various changes to the family and medical leave law, leave for school
6conferences and activities 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 in certain respects to the federal family and medical leave law.
The bill also allows an employe to take school conference and activities leave.
Family or medical leave
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 35 individuals
for each working day during each of 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, an employe may take family or medical leave only if the
employe has been employed by the same employer for more than 52 consecutive
weeks. Under the bill, an employe may take family or medical leave only if the
employe has been employed for more than 52 consecutive weeks by the employer
from whom the leave is requested.
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
before or 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 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. The bill also expands the definition of "parent" to
include an individual who stood in the place of a parent of the employe or the
employe's spouse, when the employe or spouse was a child, without having formally
adopted or assumed guardianship of that individual.
Under current law, an employe may take medical leave if the employe has a
serious health condition that makes the employe unable to perform his or her
employment duties. Under the bill, an employe may take medical leave if the
employe has a serious health condition that makes the employe unable to perform
the functions of his or her employment.
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.
School conference and activities leave
The bill allows any employe of an employer employing at least 35 individuals
to take no more than 16 hours of school conference and activities leave in a 12-month
period. School conference and activities leave may be taken to attend school
conferences or classroom activities relating to the employe's child that cannot be
scheduled during nonwork hours. In addition, if the employe's child is in day care
or is attending preschool or prekindergarten, the employe may also take school
conference and activities leave to observe and monitor the services or programming
received by the child, if that observation and monitoring cannot be scheduled during
nonwork hours. An employe is not entitled to receive wages or salary while taking
school activities leave, but may substitute, for portions of school conference and
activities leave, other types of paid or unpaid leave provided by the employer, except
that an employe may not substitute paid leave for school conference and activities
leave for attending a school conference or activity for less than one hour. An employe
who intends to take leave to attend a school conference or activity must give the
employer advance notice of the leave and make a reasonable effort to schedule the
leave so that it does not unduly disrupt the operations of the employer. For purposes
of school conference and activities leave, "child" includes a person 18 years of age or
over who is a biological, adopted or foster child, a stepchild or a legal ward of an
employe or who is a person for whom the employe stands in the place of a parent; and
"school" means a day care center licensed by the department of health and family
services, a day care provider certified for funding by a county department of human
services or social services, a day care program established or contracted for by a
school board, a public, parochial or private preschool or prekindergarten or a public,
parochial or private school that provides an educational program for one or more
grades between kindergarten and 12.
Certification of health condition
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
job development (DILJD) 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.
Also, under the bill, the employer may require an employe to obtain
recertification of the original certification on a regular basis, to report periodically
on the employe's status and intention of returning to work and to obtain certification
that the employe is able to return to work. If the employe is not able to return to work
as planned, the bill permits the employer to require the employe to provide
certification that the employe's serious health condition prevented the employe from
performing the functions of his or her position on the day on which the leave expired.
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 that 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
an employe who is returning from family, medical or school conference and activities
leave either in the employe's old position or in an equivalent position without regard
to whether the old position is vacant.
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 for an
employe who is on family, medical or school conference and activities leave 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 from family, medical or school conference and
activities leave 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 DILJD 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 of the family, medical or school conference and activities leave law.
Under current law, if DILJD finds that an employer has violated the family or
medical leave law, DILJD may order the employer to take action to remedy the
violation, including providing the requested leave, reinstating the employe,
providing back pay accrued not more than 2 years before the complaint was filed and
paying reasonable actual attorney fees. This bill eliminates the 2-year limit on back
pay for a violation of the family, medical or school conference and activities leave law
and includes among the remedies that DILJD may order for such a violation the
promotion of the employe and the provision of benefits to the employe.
Under current law, an employe or DILJD may bring a civil action in circuit court
against an employer to recover damages caused by a violation of the family or
medical leave law. Currently, a civil action under the family or medical leave law is
barred unless commenced within the later of 60 days after the completion of an
administrative proceeding, including judicial review, for the violation or 12 months
after the violation occurred or the employe or DILJD reasonably should have known
that the violation occurred. This bill permits an employe or DILJD to bring an action
for a violation of the family, medical or school conference and activities leave law on
behalf of the employe, or on behalf of the employe and other employes similarly
situated. The bill also eliminates the 12-month period within which an action must
be commenced so that an action must be commenced within 60 days after the
completion of administrative proceedings. Finally, the bill specifies that, if the
circuit court finds that an employer has violated the family, medical or school
conference and activities leave law, the circuit court may order the employer to take
action to remedy the violation and to pay the following damages:
1. Damages equal to the amount of compensation that the employe lost because
of the violation or, if the employe did not lose any compensation, any actual monetary
loss sustained as a direct result of the violation up to a sum equal to 12 weeks of wages
or salary.
2. As liquidated damages, an amount equal to the damages described in
paragraph 1., except that the court may reduce the amount of damages to the amount
described in paragraph 1. if the court finds that the violation was committed in good
faith and that the employer had reasonable grounds to believe that his or her act or
omission was not a violation of the family, medical or school conference and activities
leave law.
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:
AB166, s. 1
1Section
1. 103.10 (title) of the statutes is amended to read:
AB166,5,3
2103.10 (title)
Family or, medical and school conference and activities
3leave.
AB166, s. 2
4Section
2. 103.10 (1) (a) (intro.) of the statutes is renumbered 103.10 (1) (a) and
5amended to read:
AB166,6,6
1103.10
(1) (a) "Child" means a
natural biological, adopted, foster or treatment
2foster child, a stepchild or a legal ward
to whom any of the following applies: of an
3employe or a person for whom an employe stands in the place of a parent and includes
4a person 18 years of age or over who is a biological, adopted, foster or treatment foster
5child, a stepchild or a legal ward of an employe or who is a person for whom an
6employe stands in the place of a parent.
AB166, s. 3
7Section
3. 103.10 (1) (a) 1. and 2. of the statutes are repealed.
AB166, s. 4
8Section
4. 103.10 (1) (c) of the statutes is amended to read:
AB166,6,189
103.10
(1) (c)
Except as provided in sub. (14) (b), "employer" "Employer" means
10a person engaging in any activity, enterprise or business in this state employing at
11least
50 35 individuals
on a permanent basis for each working day during each of 20
12or more calendar weeks in the current or preceding year. "Employer" includes the
13state
, its political subdivisions and any office, department, independent agency,
14authority, institution, association, society or other body in state
or local government
15created or authorized to be created by the constitution or any law, including the
16legislature and the courts.
"Employer" also includes any person who acts, directly
17or indirectly, in the interest of an employer with respect to an employe and any
18successor in interest of an employer.
AB166, s. 5
19Section
5. 103.10 (1) (d) of the statutes is amended to read:
AB166,6,2520
103.10
(1) (d) "Employment benefit" means
an insurance, leave or retirement 21a benefit
which that an employer
provides or makes available to an employe
,
22including group life insurance, health insurance, disability insurance, sick leave,
23annual leave, educational benefits and pensions, regardless of whether those
24benefits are provided by a practice or policy of the employer or through an employe
25benefit plan, as defined in 29 USC 1002 (3).
AB166, s. 6
1Section
6. 103.10 (1) (f) of the statutes is amended to read:
AB166,7,52
103.10
(1) (f) "Parent" means a
natural biological parent, foster parent,
3treatment foster parent, adoptive parent, stepparent or legal guardian of an employe
4or an employe's spouse
or a person who stood in the place of a parent of the employe
5or the employe's spouse when the employe or spouse was a child.
AB166, s. 7
6Section
7. 103.10 (1) (fr) of the statutes is created to read:
AB166,7,127
103.10
(1) (fr) "School" means a child care provider as defined in s. 49.001 (1),
8a public, parochial or private preschool or prekindergarten or a public, parochial or
9private school which provides an educational program for one or more grades
10between kindergarten and 12 and which is commonly known as a kindergarten,
11elementary school, middle school, junior high school, senior high school or high
12school.
AB166, s. 8
13Section
8. 103.10 (1) (g) (intro.) of the statutes is amended to read:
AB166,7,1614
103.10
(1) (g) (intro.) "Serious health condition" means
a disabling physical or
15mental an illness, injury, impairment or
physical or mental condition involving any
16of the following:
AB166, s. 9
17Section
9. 103.10 (1) (g) 2. of the statutes is amended to read:
AB166,7,1918
103.10
(1) (g) 2.
Outpatient care that requires continuing Continuing 19treatment
or supervision by a health care provider.
AB166, s. 10
20Section
10. 103.10 (2) (a) of the statutes is amended to read:
AB166,7,2421
103.10
(2) (a) Nothing in this section prohibits an employer from providing
22employes with rights to family leave
or, medical leave
which or school conference and
23activities leave that are more generous to the employe than the rights provided under
24this section.
AB166, s. 11
25Section
11. 103.10 (2) (c) of the statutes is amended to read:
AB166,8,6
1103.10
(2) (c) This section only applies to an employe who has been employed
2for more than 52 consecutive weeks by the
same employer
for more than 52
3consecutive weeks from whom leave under sub. (3) is requested and who worked for
4the that employer for at least 1,000 hours during the preceding 52-week period
,
5except that for purposes of school conference and activities leave under sub. (4m) this
6section applies to any employe of an employer.
AB166, s. 12
7Section
12. 103.10 (3) (title) of the statutes is amended to read:
AB166,8,88
103.10
(3) (title)
Family or medical leave.
AB166, s. 13
9Section
13. 103.10 (3) (a) 1. of the statutes is renumbered 103.10 (3) (intro.)
10and amended to read:
AB166,8,1311
103.10
(3) (intro.) In a 12-month period
no an employe may take
more than 6 1212 weeks of
family leave
under par. (b) 1. and 2. for any one or more of the following
13reasons:
AB166, s. 14
14Section
14. 103.10 (3) (a) 2. of the statutes is repealed.
AB166, s. 15
15Section
15. 103.10 (3) (a) 3. of the statutes is repealed.
AB166, s. 16
16Section
16. 103.10 (3) (b) (intro.) of the statutes is repealed.
AB166, s. 17
17Section
17. 103.10 (3) (b) 1. of the statutes is renumbered 103.10 (3) (a) and
18amended to read:
AB166,8,2019
103.10
(3) (a) The birth of the employe's
natural biological child, if the leave
20begins within
16 weeks of 12 months before or after the child's birth.
AB166, s. 18
21Section
18. 103.10 (3) (b) 2. of the statutes is renumbered 103.10 (3) (b) and
22amended to read:
AB166,9,223
103.10
(3) (b) The placement of a child
under 18 years of age with the employe
24for adoption or as a precondition to adoption under s. 48.90 (2), but not both,
or for
1foster care, if the leave begins within
16 weeks of 12 months before or after the child's
2placement.
AB166, s. 19
3Section
19. 103.10 (3) (b) 3. of the statutes is renumbered 103.10 (3) (c).
AB166, s. 20
4Section
20. 103.10 (3) (c) of the statutes is repealed.
AB166, s. 21
5Section
21. 103.10 (3) (d) of the statutes is renumbered 103.10 (4g) (a).
AB166, s. 22
6Section
22. 103.10 (4) (title) of the statutes is repealed.
AB166, s. 23
7Section
23. 103.10 (4) (a) of the statutes is renumbered 103.10 (3) (d) and
8amended to read:
AB166,9,129
103.10
(3) (d)
Subject to pars. (b) and (c), an employe who has a A serious health
10condition
which that makes the employe unable to perform
his or her employment
11duties may take medical leave for the period during which he or she is unable to
12perform those duties the functions of the employe's position.