SB8: Bill Text

LRB-0678/2

GMM:jld:jf

2011 - 2012 LEGISLATURE

2011 Senate BILL 8

January 21, 2011 - Introduced by Senators Olsen, Darling, Grothman and Schultz, cosponsored by Representatives Kestell, Bernier, Spanbauer, Strachota and Stone. Referred to Committee on Labor, Public Safety, and Urban Affairs.

SB8,2,9 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 (8) (c), 103.10 (12) (c), 103.10 (14) (b), 252.17 (3) (i) and 252.17 (4) (c); to renumber 103.10 (3) (b) 3.; to renumber and amend 103.10 (1) (c), 103.10 (3) (a) 1., 103.10 (3) (b) 1., 103.10 (3) (b) 2., 103.10 (4) (a) and 103.10 (14) (a); to amend 103.10 (title), 103.10 (1) (a) (intro.), 103.10 (1) (a) 2., 103.10 (1) (b), 103.10 (1) (d), 103.10 (1) (f), 103.10 (1) (g) (intro.), 103.10 (1) (g) 2., 103.10 (1) (h), 103.10 (2) (a), 103.10 (2) (c), 103.10 (5) (a), 103.10 (5) (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 (7) (c), 103.10 (8) (a) (intro.), 103.10 (8) (a) 1., 103.10 (8) (a) 2., 103.10 (8) (b), 103.10 (9) (a), 103.10 (9) (b), 103.10 (12) (b), 103.10 (12) (d), 103.10 (13) (a), 111.322 (2m) (a), 111.322 (2m) (b), 111.91 (2) (f), 111.998 (2) (c), 230.35 (2m), 252.17 (4) (a), 253.10 (3) (d) 1., 632.897 (6) and 893.96 (title); to repeal and recreate 103.10 (3) (title), 103.10 (9) (c), 103.10 (9) (d), 103.10 (10), 103.10 (11) (c) and 103.10 (13) (b) 2.; and to create 103.10 (1) (ap), 103.10 (1) (aq), 103.10 (1) (c) 2., 103.10 (1) (er), 103.10 (1) (et), 103.10 (1) (fm), 103.10 (1) (gd), 103.10 (1) (i), 103.10 (2) (am), 103.10 (3) (a) 5., 103.10 (3) (am), 103.10 (3) (cm), 103.10 (3) (dm), 103.10 (5) (c), 103.10 (5) (d), 103.10 (6) (c), 103.10 (7) (b) 3m., 103.10 (7) (b) 5., 103.10 (7) (b) 6., 103.10 (7) (b) 7., 103.10 (7) (d), 103.10 (7) (e), 103.10 (7) (f), 103.10 (8) (d), 103.10 (8) (e), 103.10 (8) (f), 103.10 (12) (e), 103.10 (12) (f), 103.10 (12) (g), 103.10 (13) (c), 103.10 (15) and 103.10 (16) of the statutes; relating to: conforming the state family and medical leave law to the federal family and medical leave law and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Introduction

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

Leave requirement

Coverage of leave requirement. Under current law, an employer, including the state, that employs at least 50 individuals on a permanent basis in this state must permit an employee who has been employed by the employer for more than 52 consecutive weeks and who has worked for the employer for at least 1,000 hours during the preceding 52 weeks to take six weeks of family leave in a 12-month period for the birth or adoptive placement of a child or to care for a child, spouse, parent, or domestic partner of the employee or a parent of the spouse of the employee who has a serious health condition; and two weeks of medical leave in a 12-month period when the employee has a serious health condition that makes the employee unable to perform the employee's employment duties.

This bill requires an employer that employs at least 50 individuals for each working day for 20 or more weeks in the current or preceding year and the state or a political subdivision of the state, regardless of the number of employees employed, (employer) to permit an employee who has been employed by the employer for at least 12 months and who has worked at least 1,250 hours for that employer during the preceding 12-months (employee) to take 12 weeks of family or medical leave in a 12-month period. The bill, however, excludes from coverage under the family or medical leave law an employee who works at a worksite with fewer than 50 employees if the employer employs fewer than 50 employees within 75 miles of the worksite.

Service member family leave. The bill requires an employer to permit an employee who is the spouse, child, parent, domestic partner, or next of kin of a member of the U.S. armed forces or veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness that was incurred or aggravated in the line of duty (covered service member) to take 26 weeks of leave in a single 12-month period to care for the covered service member (service member family leave).

Family leave for active duty of family member. The bill also requires an employer to permit an employee to take family leave because of any qualifying exigency, as determined by the Department of Workforce Development (DWD) by rule, arising out of the fact that the spouse, child, domestic partner, or parent of the employee is on deployment with the U.S. armed forces to a foreign country (covered active duty) or has been notified of an impending call or order to covered active duty (family leave for the active duty of a family member).

Family leave for birth or placement of child. Under current law, family leave for the birth or adoptive placement of a child must begin within 16 weeks after the birth or placement of the child. This bill eliminates the requirement as to when family leave for that purpose must begin and instead requires family leave for that purpose to end within 12 months after the birth or placement of a child. The bill also permits family leave for a foster care placement of a child and requires family leave for the birth of a child to be taken to care for the child.

Family or medical leave for serious health condition. This bill permits family leave to care for an individual for whom the employee stands in the place of a parent or an individual who stood in the place of a parent of the employee when the employee was a child, without the employee having formally adopted or assumed guardianship of that individual or the individual having formally adopted or assumed guardianship of the employee. The bill also permits an employee to take medical leave when the employee has a serious health condition that makes the employee unable to perform the functions of his or her employment rather than the duties of that employment as under current law.

Intermittent leave or leave on reduced schedule. Under current law, an employee 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 employee to take family leave intermittently or on a reduced-leave schedule, that is, a schedule under which the employee'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 employee to take family, medical, or service member family leave intermittently or on a reduced-leave schedule when medically necessary due to a serious health condition of the employee or of a child, spouse, domestic partner, parent, or spouse's parent or due to a serious injury or illness of a covered service member. In addition, the bill permits an employee to take family leave for the active duty of a family member intermittently or on a reduced-leave schedule.

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

Substitution of leave. Under current law, an employee is not entitled to pay while on family or medical leave, but may substitute paid or unpaid leave of other types provided by the employer. This bill specifies that an employee may elect, or an employer may require the employee, to substitute leave of other types for family, medical, or service member family leave as follows:

1. For family leave for the birth or placement of a child or to care for a child, spouse, domestic partner, parent, or spouse's parent who has a serious health condition and for family leave for the active duty of a family member, paid vacation, personal, or family leave provided by the employer that the employee has accrued.

2. For family leave to care for a child, spouse, domestic partner, parent, or spouse's parent who has a serious health condition or for medical leave, paid vacation, personal, or sick leave provided by the employer that the employee has accrued, except that the employer is not required to provide paid sick leave when the employer does not normally provide that leave.

3. For service member family leave, paid vacation, personal, family, or sick leave provided by the employer that the employee has accrued, except that the employer is not required to provide paid sick leave when the employer does not normally provide that leave.

Notification and certification

Notice to employer. Under current law, an employee who intends to take family or medical leave for the birth or placement of a child or for planned medical treatment must give the employer advance notice of the birth or placement or planned medical treatment in a manner that is reasonable and practicable. This bill requires an employee to give the employer notice of the employee's intent to take that leave not less than 30 days before the leave is to begin in those situations that are foreseeable, except that, if the date of the birth or placement or the planned medical treatment requires the leave to begin in less than 30 days, the employee must provide notice to the employer in a reasonable and practicable manner.

Certification. Under current law, if an employee requests leave due to a serious health condition of the employee, of a child, spouse, parent, or domestic partner of the employee, or of a parent of the spouse of the employee, the employer may require certification from a health care provider or a Christian Science practitioner stating that: 1) the child, spouse, parent, domestic partner, or employee has a serious health condition; 2) the date on which the serious health conditions commenced and its probable duration; 3) the medical facts regarding the serious health condition; and 4) if applicable, the extent to which the employee is unable to perform his or her employment duties. The employer may also require an employee to obtain a second opinion, at the employer's expense, concerning the certification provided by the employee's health care provider.

This bill permits a certification to state, in addition to the information permitted under current law, all of the following:

1. If the employee requests leave to care for a child, spouse, domestic partner, parent, or spouse's parent who has a serious health condition, that the employee is needed to care for the child, spouse, domestic partner, parent, or spouse's parent and an estimate of the amount of time that the employee is needed to provide that care.

2. If the employee requests intermittent leave or leave on a reduced-leave schedule for planned medical treatment of the employee, or of a child, spouse, domestic partner, parent, or spouse's parent, the dates on which that treatment is expected to be given and the duration of that treatment.

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.