LRB-0678/2
GMM:jld:jf
2011 - 2012 LEGISLATURE
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
1An Act to repeal 103.10 (3) (a) 2., 103.10 (3) (a) 3., 103.10 (3) (b) (intro.), 103.10
2(3) (c), 103.10 (3) (d), 103.10 (4) (title), 103.10 (4) (b), 103.10 (4) (c), 103.10 (8)
3(c), 103.10 (12) (c), 103.10 (14) (b), 252.17 (3) (i) and 252.17 (4) (c);
to renumber
4103.10 (3) (b) 3.;
to renumber and amend 103.10 (1) (c), 103.10 (3) (a) 1.,
5103.10 (3) (b) 1., 103.10 (3) (b) 2., 103.10 (4) (a) and 103.10 (14) (a);
to amend
6103.10 (title), 103.10 (1) (a) (intro.), 103.10 (1) (a) 2., 103.10 (1) (b), 103.10 (1)
7(d), 103.10 (1) (f), 103.10 (1) (g) (intro.), 103.10 (1) (g) 2., 103.10 (1) (h), 103.10
8(2) (a), 103.10 (2) (c), 103.10 (5) (a), 103.10 (5) (b), 103.10 (6) (a), 103.10 (6) (b)
9(intro.), 103.10 (6) (b) 1., 103.10 (6) (b) 2., 103.10 (7) (a), 103.10 (7) (b) 4., 103.10
10(7) (c), 103.10 (8) (a) (intro.), 103.10 (8) (a) 1., 103.10 (8) (a) 2., 103.10 (8) (b),
11103.10 (9) (a), 103.10 (9) (b), 103.10 (12) (b), 103.10 (12) (d), 103.10 (13) (a),
12111.322 (2m) (a), 111.322 (2m) (b), 111.91 (2) (f), 111.998 (2) (c), 230.35 (2m),
13252.17 (4) (a), 253.10 (3) (d) 1., 632.897 (6) and 893.96 (title);
to repeal and
14recreate 103.10 (3) (title), 103.10 (9) (c), 103.10 (9) (d), 103.10 (10), 103.10 (11)
1(c) and 103.10 (13) (b) 2.; and
to create 103.10 (1) (ap), 103.10 (1) (aq), 103.10
2(1) (c) 2., 103.10 (1) (er), 103.10 (1) (et), 103.10 (1) (fm), 103.10 (1) (gd), 103.10
3(1) (i), 103.10 (2) (am), 103.10 (3) (a) 5., 103.10 (3) (am), 103.10 (3) (cm), 103.10
4(3) (dm), 103.10 (5) (c), 103.10 (5) (d), 103.10 (6) (c), 103.10 (7) (b) 3m., 103.10
5(7) (b) 5., 103.10 (7) (b) 6., 103.10 (7) (b) 7., 103.10 (7) (d), 103.10 (7) (e), 103.10
6(7) (f), 103.10 (8) (d), 103.10 (8) (e), 103.10 (8) (f), 103.10 (12) (e), 103.10 (12) (f),
7103.10 (12) (g), 103.10 (13) (c), 103.10 (15) and 103.10 (16) of the statutes;
8relating to: conforming the state family and medical leave law to the federal
9family 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.
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
1Section
1. 103.10 (title) of the statutes is amended to read:
SB8,8,2
2103.10 (title)
Family or, medical, or service member family leave.
SB8, s. 2
3Section
2. 103.10 (1) (a) (intro.) of the statutes is amended to read:
SB8,8,64
103.10
(1) (a) (intro.) "Child" means a
natural biological, adopted, or foster
5child, a stepchild, or a legal ward
, or an individual for whom an employee stands in
6the place of a parent, to whom any of the following applies:
SB8, s. 3
7Section
3. 103.10 (1) (a) 2. of the statutes is amended to read:
SB8,8,108
103.10
(1) (a) 2. The individual is 18 years of age or older and
cannot care for
9himself or herself is incapable of self-care because of a
serious health condition 10mental or physical disability.
SB8, s. 4
11Section
4. 103.10 (1) (ap) of the statutes is created to read:
SB8,8,1212
103.10
(1) (ap) "Covered active duty" means any of the following:
SB8,8,1413
1. In the case of a member of a regular component of the U.S. armed forces, duty
14during the deployment of the member with the U.S. armed forces to a foreign country.
SB8,9,4
12. In the case of a member of a reserve component of the U.S. armed forces, duty
2during the deployment of the member with the U.S. armed forces to a foreign country
3under a call or order to active duty under a provision of law specified in
10 USC 101 4(a) (13) (B).
SB8, s. 5
5Section
5. 103.10 (1) (aq) of the statutes is created to read:
SB8,9,66
103.10
(1) (aq) "Covered service member" means any of the following:
SB8,9,117
1. A member of the U.S. armed forces, including a member of the national guard
8or a reserve component of the U.S. armed forces, who is undergoing medical
9treatment, recuperation, or therapy, who is otherwise in outpatient status, or who
10is otherwise on the temporary disability retired list maintained under
10 USC 1376,
11for a serious injury or illness.
SB8,9,1612
2. A veteran who is undergoing medical treatment, recuperation, or therapy,
13for a serious injury or illness and who was a member of the U.S. armed forces,
14including a member of the national guard or a reserve component of the U.S. armed
15forces, at any time during the 5 years preceding the date on which the veteran
16undergoes that medical treatment, recuperation, or therapy.
SB8, s. 6
17Section
6. 103.10 (1) (b) of the statutes is amended to read:
SB8,9,2118
103.10
(1) (b) "Employee" means an individual employed
, or suffered or
19permitted to work, in this state by an employer,
except other than the employer's
20parent, spouse, domestic partner, or child
or an individual described in 29 USC 203
21(e) (2) (C) (i) and (ii), (4), or (5), as amended to August 7, 1998.
SB8, s. 7
22Section
7. 103.10 (1) (c) of the statutes is renumbered 103.10 (1) (c) (intro.) and
23amended to read: