SB385: Bill Text

2015 Senate BILL 385

November 12, 2015 - Introduced by Senators Ringhand, Lassa, Hansen, Wirch, Carpenter, Erpenbach, C. Larson, Miller, Risser and Shilling, cosponsored by Representatives Pope, Genrich, Stuck, Zepnick, Barnes, Berceau, Billings, Bowen, Brostoff, Considine, Goyke, Hebl, Hesselbein, Hintz, Johnson, Jorgensen, Kolste, Mason, Ohnstad, Riemer, Sargent, Shankland, Spreitzer, Subeck, C. Taylor and Zamarripa. Referred to Committee on Labor and Government Reform.

SB385,2,2 An Act to repeal 103.10 (1) (a) 1., 103.10 (1) (a) 2. and 103.10 (14) (b); to renumber 103.10 (14) (a); to renumber and amend 103.10 (1) (a) (intro.); to amend 103.10 (1) (b), 103.10 (1) (c), 103.10 (1m) (b) 4., 103.10 (3) (a) 1., 103.10 (3) (b) 3., 103.10 (6) (b) (intro.), 103.10 (6) (b) 1., 103.10 (7) (a), 103.10 (7) (b) (intro.), 103.10 (7) (b) 1., 103.10 (12) (c), 111.322 (2m) (a) and 111.322 (2m) (b); and to create 20.445 (1) (w), 25.17 (1) (er), 25.52, 71.05 (6) (b) 53., 103.10 (1) (ap), 103.10 (1) (dm), 103.10 (1) (dp), 103.10 (1) (gm), 103.10 (3) (b) 4., 103.10 (6) (c), 103.10 (7) (d) and 103.11 of the statutes; relating to: the establishment of a family and medical leave insurance program; family leave to care for a grandparent, grandchild, or sibling and for the active duty of a family member; the employers that are required to permit an employee to take family or medical leave; granting rule-making authority; making an appropriation; and providing a penalty.

Analysis by the Legislative Reference Bureau

Introduction

This bill expands the family and medical leave law to permit an employee covered under that law to take family leave to care for a grandparent, grandchild, or sibling, lowers the threshold number of employees above which an employer must permit an employee to take family or medical leave, and establishes a family and medical leave insurance program under which certain covered individuals may receive benefits while taking family or medical leave.

Family and medical leave expansion

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 up to eight 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 up to 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, including the state, that employs at least 25 employees on a permanent basis in this state to permit an employee to take family or medical leave as provided under current law. The bill also permits an employee to take family leave as provided under current law to care for a grandparent, grandchild, or sibling of the employee who has a serious health condition. In addition, the bill 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, parent, grandparent, grandchild, or sibling 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 and medical leave insurance program

The bill creates a family and medical leave insurance program, to be administered by DWD, under which a covered individual who is on family or medical leave is eligible, beginning on January 1, 2020, to receive up to 12 weeks of family or medical leave insurance benefits as specified in the bill from the family and medical leave insurance trust fund created under the bill (trust fund). For purposes of the bill:

1. A "covered individual" is an individual who worked for an employer for at least 680 hours in the calendar year prior to the year in which the covered individual claims family or medical leave insurance benefits (application year) or a self-employed individual who elects coverage under the program, regardless of whether the individual is employed or unemployed at the time the individual files an application for family or medical leave insurance benefits.

2. "Family leave" means leave from employment, self-employment, or availability for employment for the birth or adoptive placement of a new child or to care for a child, spouse, domestic partner, parent, grandparent, grandchild, or sibling who has a serious health condition.

3. "Medical leave" means leave from employment when a covered individual has a serious health condition that makes the individual unable to perform his or her employment duties, leave from self-employment when a covered individual has a serious health condition that makes the individual unable to perform the duties of his or her self-employment, or leave from availability for employment when a covered individual has a serious health condition that makes the individual unable to perform the duties of any suitable employment.

Under the bill, the amount of family or medical leave insurance benefits for a week for which those benefits are payable is as follows:

1. For a covered individual who earned less than 30 percent of the state annual median wage in the calendar year before the individual's application year, 95 percent of that individual's average weekly earnings.

2. For a covered individual who earned at least 30 percent, but less than 50 percent, of the state annual median wage in the calendar year before the individual's application year, 90 percent of that individual's average weekly earnings.

3. For a covered individual who earned at least 50 percent, but less than 80 percent, of the state annual median wage in the calendar year before the individual's application year, 85 percent of that individual's average weekly earnings.

4. For a covered individual who earned at least 80 percent of the state annual median wage in the calendar year before the individual's application year, 66 percent of that individual's average weekly earnings.

In addition, the bill provides that family or medical leave insurance benefits are payable beginning on the sixth day of family or medical leave, except that if a covered individual uses ten or more days of family or medical leave insurance benefits in an application year, those benefits are also payable with respect to the first five days of family or medical leave. The bill also provides that no family or medical leave insurance benefits are payable for any period of family or medical leave in which a covered individual is substituting paid leave of any other type provided by his or her employer or in which a covered individual is receiving unemployment benefits or worker's compensation benefits. Finally, with respect to family or medical leave insurance benefits, the bill provides that those benefits are exempt from state income taxation.

Beginning on January 1, 2019, the bill requires each individual employed in this state, including an individual employed by the state, and each self-employed individual who elects coverage under the family and medical leave insurance program to contribute to the trust fund a percentage of his or her wages from employment or income from self-employment determined by DWD in consultation with the commissioner of insurance that is sufficient to finance the payments of benefits under the program and the administration of the program. The bill requires DWD to collect those contributions in the same manner as DWD collects contributions to the unemployment reserve fund under current law.

Finally, the bill:

1. Permits a covered individual whose claim for family or medical leave insurance benefits is denied by DWD to request a hearing on the denial and requires DWD to process the request for hearing in the same manner that requests for hearings on unemployment insurance claims are processed under current law.

2. Permits DWD to seek repayment of family or medical leave insurance benefits that are paid erroneously or as a result of willful misrepresentation in the same manner that DWD recovers erroneous payments of unemployment insurance benefits under current law or to waive recovery of an erroneous payment of those benefits if the erroneous payment was not the fault of the person who received it and if requiring repayment would be contrary to equity and good conscience.

3. Provides that if an individual willfully makes a false statement or representation, or willfully fails to disclose a material fact, to obtain family or medical leave insurance benefits, the individual is disqualified from receiving those benefits for one year after the date of the disqualification.

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:

SB385,1 Section 1. 20.445 (1) (w) of the statutes is created to read:

SB385,4,6 20.445 (1) (w) Family and medical leave insurance trust fund. From the family and medical leave insurance trust fund, all moneys deposited in that fund under s. 103.11 (7) for the payments of family or medical leave insurance benefits under s. 103.11 (2) (c) and for the administration of the family or medical leave insurance program under s. 103.11.

SB385,2 Section 2. 25.17 (1) (er) of the statutes is created to read:

SB385,4,8 25.17 (1) (er) Family and medical leave insurance trust fund (s. 25.52);

SB385,3 Section 3. 25.52 of the statutes is created to read:

SB385,5,2 25.52 Family and medical leave insurance trust fund. There is created a separate nonlapsible trust fund designated as the family and medical leave insurance trust fund, to consist of all moneys deposited in that fund under s. 103.11 (7).

SB385,4 Section 4. 71.05 (6) (b) 53. of the statutes is created to read:

SB385,5,7 71.05 (6) (b) 53. For taxable years beginning after December 31, 2019, any amount of family or medical leave insurance benefits received by a covered individual, as defined in s. 103.11 (1) (d), in the taxable year to which the subtraction relates.

SB385,5 Section 5. 103.10 (1) (a) (intro.) of the statutes is renumbered 103.10 (1) (a) and amended to read:

SB385,5,11 103.10 (1) (a) "Child" means a natural, adopted, or foster child, a stepchild, or a legal ward to whom any of the following applies:.

SB385,6 Section 6. 103.10 (1) (a) 1. of the statutes is repealed.

SB385,7 Section 7. 103.10 (1) (a) 2. of the statutes is repealed.

SB385,8 Section 8. 103.10 (1) (ap) of the statutes is created to read:

SB385,5,15 103.10 (1) (ap) "Covered active duty" means any of the following:

SB385,5,17 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.

SB385,5,21 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).

SB385,9 Section 9. 103.10 (1) (b) of the statutes is amended to read:

SB385,5,25 103.10 (1) (b) Except as provided in sub. (1m) (b) 2., "employee" means an individual employed in this state by an employer, except the employer's parent, child, spouse, domestic partner, or child parent, grandparent, grandchild, or sibling.

SB385,10 Section 10. 103.10 (1) (c) of the statutes is amended to read:

SB385,6,7 103.10 (1) (c) Except as provided in sub. (1m) (b) 3., "employer" means a person engaging in any activity, enterprise, or business in this state employing at least 50 25 individuals on a permanent basis. "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.

SB385,11 Section 11. 103.10 (1) (dm) of the statutes is created to read:

SB385,6,9 103.10 (1) (dm) "Grandchild" means the child of a child.

SB385,12 Section 12. 103.10 (1) (dp) of the statutes is created to read:

SB385,6,11 103.10 (1) (dp) "Grandparent" means the parent of a parent.

SB385,13 Section 13. 103.10 (1) (gm) of the statutes is created to read:

SB385,6,14 103.10 (1) (gm) "Sibling" means a brother, sister, half brother, half sister, stepbrother, or stepsister, whether by blood, marriage, or adoption.

SB385,14 Section 14. 103.10 (1m) (b) 4. of the statutes is amended to read:

SB385,6,23 103.10 (1m) (b) 4. "Family member" means a spouse or domestic partner of an employee; a parent, child, sibling, including a foster sibling, brother-in-law, sister-in-law, grandparent, stepgrandparent, or grandchild of an employee or of an employee's spouse or domestic partner; or any other person who is related by blood, marriage, or adoption to an employee or to an employee's spouse or domestic partner and whose close association with the employee, spouse, or domestic partner makes the person the equivalent of a family member of the employee, spouse, or domestic partner.

SB385,15 Section 15. 103.10 (3) (a) 1. of the statutes is amended to read:

SB385,7,2 103.10 (3) (a) 1. In a 12-month period no employee may take more than 6 weeks of family leave under par. (b) 1. and, 2., and 4.

SB385,16 Section 16. 103.10 (3) (b) 3. of the statutes is amended to read:

SB385,7,6 103.10 (3) (b) 3. To care for the employee's child, spouse, domestic partner, or parent, grandparent, grandchild, or sibling, if the child, spouse, domestic partner, or parent, grandparent, grandchild, or sibling has a serious health condition.

SB385,17 Section 17. 103.10 (3) (b) 4. of the statutes is created to read:

SB385,7,11 103.10 (3) (b) 4. Because of any qualifying exigency, as determined by the department by rule, arising out of the fact that the spouse, child, domestic partner, parent, grandparent, grandchild, or sibling of the employee is on covered active duty or has been notified of an impending call or order to covered active duty.

SB385,18 Section 18. 103.10 (6) (b) (intro.) of the statutes is amended to read:

SB385,7,17 103.10 (6) (b) (intro.) If an employee intends to take family leave because of the planned medical treatment or supervision of a child, spouse, domestic partner, or parent, grandparent, grandchild, or sibling or intends to take medical leave because of the planned medical treatment or supervision of the employee, the employee shall do all of the following:

SB385,19 Section 19. 103.10 (6) (b) 1. of the statutes is amended to read:

SB385,7,22 103.10 (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, domestic partner, parent, grandparent, grandchild, sibling, or employee.

SB385,20 Section 20. 103.10 (6) (c) of the statutes is created to read:

SB385,8,3 103.10 (6) (c) If the employee intends to take leave under sub. (3) (b) 4. that is foreseeable because the spouse, child, domestic partner, parent, grandparent, grandchild, or sibling of the employee is on covered active duty or has been notified of an impending call or order to covered active duty, the employee shall provide notice of that intention to the employer in a reasonable and practicable manner.

SB385,21 Section 21. 103.10 (7) (a) of the statutes is amended to read:

SB385,8,9 103.10 (7) (a) If an employee requests family leave for a reason described in sub. (3) (b) 3. or requests medical leave, the employer may require the employee to provide certification, as described in par. (b), issued by the health care provider or Christian Science practitioner of the child, spouse, domestic partner, parent, grandparent, grandchild, sibling, or employee, whichever is appropriate.

SB385,22 Section 22. 103.10 (7) (b) (intro.) of the statutes is amended to read:

SB385,8,12 103.10 (7) (b) (intro.) No employer may require certification under par. (a) stating more than the following:

SB385,23 Section 23. 103.10 (7) (b) 1. of the statutes is amended to read:

SB385,8,15 103.10 (7) (b) 1. That the child, spouse, domestic partner, parent, grandparent, grandchild, sibling, or employee has a serious health condition.

SB385,24 Section 24. 103.10 (7) (d) of the statutes is created to read:

SB385,8,23 103.10 (7) (d) If an employee requests leave under sub. (3) (b) 4., the employer may require the employee to provide certification that the spouse, child, domestic partner, parent, grandparent, grandchild, or sibling of the employee is on covered active duty or has been notified of an impending call or order to covered active duty issued at such time and in such manner as the department may prescribe by rule, and the employee shall provide a copy of that certification to the employer in a timely manner.

SB385,25 Section 25. 103.10 (12) (c) of the statutes is amended to read:

SB385,9,7 103.10 (12) (c) If 2 or more health care providers disagree about any of the information required to be certified under sub. (7) (b), the department may appoint another health care provider to examine the child, spouse, domestic partner, parent, grandparent, grandchild, sibling, or employee and render an opinion as soon as possible. The department shall promptly notify the employee and the employer of the appointment. The employer and the employee shall each pay 50% 50 percent of the cost of the examination and opinion.

SB385,26 Section 26. 103.10 (14) (a) of the statutes is renumbered 103.10 (14).

SB385,27 Section 27. 103.10 (14) (b) of the statutes is repealed.

SB385,28 Section 28. 103.11 of the statutes is created to read:

SB385,9,12 103.11 Family and medical leave insurance program. (1) Definitions. In this section:

SB385,9,15 (a) "Application year" means the 12-month period beginning on the first day of the first calendar week for which family or medical leave insurance benefits are claimed by a covered individual.

SB385,9,17 (b) "Average weekly earnings" means the average weekly earnings of a covered individual as calculated under s. 102.11 (1) (a) to (e).

SB385,9,18 (c) "Child" means a natural, adopted, or foster child, a stepchild, or a legal ward.

SB385,9,23 (d) "Covered individual" means an individual who worked for an employer for at least 680 hours in the calendar year prior to the individual's application year or a self-employed individual who elects coverage under sub. (2) (b), regardless of whether the individual is employed or unemployed at the time the individual files an application for family or medical leave insurance benefits.