SB8: Bill Text

3. If the employee requests intermittent leave or leave on a reduced-leave schedule to care for a child, spouse, domestic partner, parent, or spouse's parent who has a serious health condition, that such leave is necessary for that care or will assist in the recovery of the child, spouse, domestic partner, parent, or spouse's parent and the expected duration and schedule of that leave.

4. If the employee requests intermittent leave or leave on a reduced-leave schedule for the employee's serious health condition, the medical necessity for that leave and the expected duration of that leave.

5. If the employee requests medical leave for the employee's serious health condition, that the employee is unable to perform the functions of the employee's position, rather than a statement of the extent to which the employee is unable to perform his or her employment duties as under current law.

The bill also specifies that a health care provider or Christian Science practitioner designated to provide a second opinion may not be employed on a regular basis by the employer. In addition, the bill permits the employer to require the employee to obtain the opinion of a third health care provider or Christian Science practitioner, designated or approved by the employee and employer jointly and paid for by the employer, if the original certification and second opinion differ, and to obtain recertifications on a reasonable basis. The employer and employee must accept the third opinion as binding upon them.

Finally, with respect to certification, the bill permits an employer to require an employee who requests family leave for the active duty of a family member to provide certification that the family member is on covered active duty at such time and in such manner as DWD may prescribe by rule.

Employment and benefits protection

Position on return to employment. Under current law, when an employee returns from family or medical leave, the employer must place the employee in the position the employee 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 an employer to place a returning employee either in the employee'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 employee must have actually taken the leave for the purpose for which it was intended. The bill also permits an employer to require an employee who is on leave to report to the employer periodically on the employee's status and intention of returning to work and to adopt a uniform policy requiring an employee who is returning from medical leave to obtain a certification from the employee's health care provider or Christian Science practitioner that the employee is able to return to work.

Maintenance of health care coverage. Under current law, an employer must maintain for an employee who is on family or medical leave group health insurance coverage under the conditions that applied immediately before the leave began. 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 employee had continued in employment.

Under current law, an employer may require an employee to place in escrow with the employer the premium for eight 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 employee does not return from leave. This bill eliminates the escrow requirement, but permits an employer to recover those premiums if an employee does not return to work for reasons other than the recurrence, onset, or continuation of a serious health condition of the employee or of a child, spouse, or parent of the employee, a serious injury or illness of a covered service member, or other circumstances beyond the employee's control.

Enforcement

Administrative proceedings. Under current law, an employee who believes that his or her employer has denied any right provided under the family or medical leave law or has retaliated against the employee for opposing a practice prohibited under that law may file a complaint with DWD within 30 days after the employee knew or should have known of the violation, and an employee who believes that his or her employer has retaliated against the employee for initiating, testifying in, or assisting in a proceeding under that law may file a complaint with DWD within 300 days after the alleged retaliation occurred. This bill extends those time limits to two years after the date of the last event constituting the alleged violation or, if the violation was willful, to three years after that event.

Under current law, if DWD finds that an employer has violated the family or medical leave law, DWD may order the employer to take action to remedy the violation, including providing the requested leave, reinstating the employee, providing back pay accrued not more than two years before the complaint was filed, and paying reasonable actual attorney fees. This bill eliminates that two-year limit on back pay and includes among the remedies that DWD may order promotion of the employee and the provision of benefits to the employee.

Under current law, a determination by DWD on the issue of whether an employee has been denied any right provided under the family and medical leave law or has been retaliated against for opposing a practice prohibited under that law may be appealed directly to the circuit court (judicial review), while a determination by DWD on the issue of whether an employee has been retaliated against for initiating, testifying in, or assisting in a proceeding under that law must be appealed to the Labor and Industry Review Commission (LIRC) prior to judicial review. This bill permits a determination by DWD on the issue of whether an employee has been denied any right provided under the family and medical leave law or has been retaliated against for opposing a practice prohibited under that law to be appealed to LIRC in the same manner as an appeal of a determination by DWD on the issue of whether an employee has been retaliated against for initiating, testifying in, or assisting in a proceeding under the family and medical leave law.

Civil action for damages. Under current law, an employee or DWD 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 employee or DWD reasonably should have known that the violation occurred.

This bill permits an employee or DWD to bring an action for damages on behalf of the employee, or on behalf of the employee and other employees similarly situated. The bill also permits an action to be commenced within 60 days after the completion of administrative proceedings or within two years after the date of the last event constituting the alleged violation or, if the violation was willful, within three years after that event, whichever is later. Finally, the bill specifies that the circuit court may award damages, plus costs and reasonable attorney fees, for a violation in the following amounts:

1. An amount equal to the amount of compensation that the employee lost because of the violation or, if the employee 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 or, in a case involving service member family leave, 26 weeks of wages or salary.

2. As liquidated damages, an amount equal to the damages awarded for lost compensation or other monetary loss, except that the court may reduce the amount of damages to the amount awarded for lost compensation or other monetary loss 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 law.

Special provisions

Finally, the bill makes special provisions for certain classes of employees. Specifically:

1. If a husband and wife both work for the same employer, the employer may limit their combined family leave for the birth or placement of a child or to care for a child, spouse, or parent to 12 weeks in a 12-month period and their combined service member family leave to 26 weeks in a 12-month period.

2. If a teacher requests intermittent leave or leave on a reduce-leave schedule that is foreseeable for planned medical treatment and would be on leave for greater than 20 percent of the working days during the leave, the educational agency employing the teacher (educational agency) may require the teacher to take leave for period of a particular duration or to transfer temporarily to an alternative employment position. An educational agency may also require a teacher to continue taking leave until the end of the semester under certain circumstances, depending on the duration of the leave and how close to the end of the semester the leave ends.

3. If an employee is among the highest-paid 10 percent of the employer's employees, if denying reinstatement of the employee is necessary to prevent substantial and grievous economic injury to the employer, and if the employer so notifies the employee at the time the employer determines that the injury will occur, the employer may deny reinstatement of the employee following leave, except that, if the employee receives that notice during the leave, the employee must agree not to return to employment with the employer.

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:

SB8, s. 1 Section 1. 103.10 (title) of the statutes is amended to read:

SB8,8,2 103.10 (title) Family or, medical, or service member family leave.

SB8, s. 2 Section 2. 103.10 (1) (a) (intro.) of the statutes is amended to read:

SB8,8,6 103.10 (1) (a) (intro.) "Child" means a natural biological, adopted, or foster child, a stepchild, or a legal ward, or an individual for whom an employee stands in the place of a parent, to whom any of the following applies:

SB8, s. 3 Section 3. 103.10 (1) (a) 2. of the statutes is amended to read:

SB8,8,10 103.10 (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.

SB8, s. 4 Section 4. 103.10 (1) (ap) of the statutes is created to read:

SB8,8,12 103.10 (1) (ap) "Covered active duty" means any of the following:

SB8,8,14 1. In the case of a member of a regular component of the U.S. armed forces, duty during the deployment of the member with the U.S. armed forces to a foreign country.

SB8,9,4 2. In the case of a member of a reserve component of the U.S. armed forces, duty during the deployment of the member with the U.S. armed forces to a foreign country under a call or order to active duty under a provision of law specified in 10 USC 101 (a) (13) (B).

SB8, s. 5 Section 5. 103.10 (1) (aq) of the statutes is created to read:

SB8,9,6 103.10 (1) (aq) "Covered service member" means any of the following:

SB8,9,11 1. A member of the U.S. armed forces, including a member of the national guard or a reserve component of the U.S. armed forces, who is undergoing medical treatment, recuperation, or therapy, who is otherwise in outpatient status, or who is otherwise on the temporary disability retired list maintained under 10 USC 1376, for a serious injury or illness.

SB8,9,16 2. A veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the U.S. armed forces, including a member of the national guard or a reserve component of the U.S. armed forces, at any time during the 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.

SB8, s. 6 Section 6. 103.10 (1) (b) of the statutes is amended to read:

SB8,9,21 103.10 (1) (b) "Employee" means an individual employed, or suffered or permitted to work, in this state by an employer, except other than the employer's parent, spouse, domestic partner, or child or an individual described in 29 USC 203 (e) (2) (C) (i) and (ii), (4), or (5), as amended to August 7, 1998.

SB8, s. 7 Section 7. 103.10 (1) (c) of the statutes is renumbered 103.10 (1) (c) (intro.) and amended to read:

SB8,9,25 103.10 (1) (c) (intro.) 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 any person who acts, directly or indirectly, in the interest of an employer with respect to an employee and any successor in interest of an employer. "Employer" also includes the, without regard to the number of employees employed by the employer, all of the following:

SB8,10,10 1. 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.

SB8, s. 8 Section 8. 103.10 (1) (c) 2. of the statutes is created to read:

SB8,10,15 103.10 (1) (c) 2. A political subdivision of this state, a special purpose district in this state, an instrumentality or corporation of such a political subdivision or special purpose district, a combination or subunit of any of the foregoing or an instrumentality of the state and any of the foregoing.

SB8, s. 9 Section 9. 103.10 (1) (d) of the statutes is amended to read:

SB8,10,21 103.10 (1) (d) "Employment benefit" means an insurance, leave or retirement a benefit which that an employer makes available to an employee, 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 employee benefit plan.

SB8, s. 10 Section 10. 103.10 (1) (er) of the statutes is created to read:

SB8,10,23 103.10 (1) (er) "Next of kin" means the closest blood relative of an individual.

SB8, s. 11 Section 11. 103.10 (1) (et) of the statutes is created to read:

SB8,11,5 103.10 (1) (et) "Outpatient status" means the status of a covered service member who is a member of the U.S. armed forces being assigned to a military medical treatment facility as an outpatient or to a unit established for the purpose of providing command and control of members of the U.S. armed forces receiving medical care as outpatients.

SB8, s. 12 Section 12. 103.10 (1) (f) of the statutes is amended to read:

SB8,11,10 103.10 (1) (f) "Parent" means a natural biological parent, foster parent, adoptive parent, stepparent, or legal guardian of an employee or of an employee's spouse or domestic partner or a person who stood in the place of a parent of the employee when the employee was a child.

SB8, s. 13 Section 13. 103.10 (1) (fm) of the statutes is created to read:

SB8,11,13 103.10 (1) (fm) "Reduced-leave schedule" means a leave schedule that reduces the usual number of hours that an employee works per day or per week.

SB8, s. 14 Section 14. 103.10 (1) (g) (intro.) of the statutes is amended to read:

SB8,11,17 103.10 (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:

SB8, s. 15 Section 15. 103.10 (1) (g) 2. of the statutes is amended to read:

SB8,11,20 103.10 (1) (g) 2. Outpatient care that requires continuing Continuing treatment or supervision by a health care provider.

SB8, s. 16 Section 16. 103.10 (1) (gd) of the statutes is created to read:

SB8,11,22 103.10 (1) (gd) "Serious injury or illness" means any of the following:

SB8,12,4 1. In the case of a member of the U.S. armed forces, including a member of the national guard or a reserve component of the U.S. armed forces, an injury or illness that was incurred by the member in the line of duty while on active duty in the U.S. armed forces, or that existed before the beginning of the member's active duty and was aggravated by service in the line of duty while on active duty in the U.S. armed forces, and that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating.

SB8,12,14 2. In the case of a veteran who was a member of the U.S. armed forces, including a member of the national guard or a reserve component of the U.S. armed forces, at any time during the 5 years preceding the date on which the veteran undergoes medical treatment, recuperation, or therapy for an injury or illness that was incurred by the veteran in the line of duty while on active duty in the U.S. armed forces, or that existed before the beginning of the veteran's active duty and was aggravated by service in the line of duty while on active duty in the U.S. armed forces, a qualifying illness or injury, as determined by the department, that was so incurred or aggravated, whether the illness or injury manifested itself before or after the end of the veteran's active duty.

SB8, s. 17 Section 17. 103.10 (1) (h) of the statutes is amended to read:

SB8,12,16 103.10 (1) (h) "Spouse" means an employee's legal husband or wife.

SB8, s. 18 Section 18. 103.10 (1) (i) of the statutes is created to read:

SB8,12,18 103.10 (1) (i) "Veteran" has the meaning given in 38 USC 101 (2).

SB8, s. 19 Section 19. 103.10 (2) (a) of the statutes is amended to read:

SB8,12,23 103.10 (2) (a) Nothing in this section prohibits an employer from providing employees with rights to family leave or, medical leave which, or service member family leave that are more generous to the employee than the rights provided under this section.

SB8, s. 20 Section 20. 103.10 (2) (am) of the statutes is created to read:

SB8,13,5 103.10 (2) (am) 1. Nothing in this section diminishes the obligation of an employer to comply with a collective bargaining agreement or employee benefit program or plan under which the employer provides employees with rights to family leave, medical leave, or service member family leave that are more generous to the employee than the rights provided under this section.

SB8,13,8 2. A collective bargaining agreement or employee benefit program or plan may not limit or diminish any rights to family leave, medical leave, or service member family leave provided under this section.

SB8, s. 21 Section 21. 103.10 (2) (c) of the statutes is amended to read:

SB8,13,16 103.10 (2) (c) This section only applies to an employee who has been employed for at least 12 months by the same employer for more than 52 consecutive weeks from which 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 employee who is employed at a worksite at which the employer employs less than 50 employees if the total number of employees employed by the employer within 75 miles of that worksite is less than 50.

SB8, s. 22 Section 22. 103.10 (3) (title) of the statutes is repealed and recreated to read:

SB8,13,18 103.10 (3) (title) Leave requirement.

SB8, s. 23 Section 23. 103.10 (3) (a) 1. of the statutes is renumbered 103.10 (3) (a) (intro.) and amended to read:

SB8,13,23 103.10 (3) (a) (intro.) In a 12-month period no an employee 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:

SB8, s. 24 Section 24. 103.10 (3) (a) 2. of the statutes is repealed.

SB8, s. 25 Section 25. 103.10 (3) (a) 3. of the statutes is repealed.

SB8, s. 26 Section 26. 103.10 (3) (a) 5. of the statutes is created to read:

SB8,14,5 103.10 (3) (a) 5. Because of any qualifying exigency, as determined by the department by rule, arising out of the fact that the spouse, child, domestic partner, or parent of the employee is on covered active duty or has been notified of an impending call or order to covered active duty.

SB8, s. 27 Section 27. 103.10 (3) (am) of the statutes is created to read:

SB8,14,14 103.10 (3) (am) In a 12-month period an employee who is the spouse, child, parent, domestic partner, or next of kin of a covered service member may take 26 weeks of leave to care for the covered service member. Leave under this paragraph may be taken only during a single 12-month period. In a 12-month period in which leave is taken under this paragraph, an employee may take a combined total of 26 weeks of leave under this paragraph and par. (a). This paragraph does not limit the amount of leave that an employee may take under par. (a) in any other 12-month period.

SB8, s. 28 Section 28. 103.10 (3) (b) (intro.) of the statutes is repealed.

SB8, s. 29 Section 29. 103.10 (3) (b) 1. of the statutes is renumbered 103.10 (3) (a) 1m. and amended to read: