SB1064: Bill Text

SB1064,33 Section 33 . 103.10 (7) (b) 1. of the statutes is amended to read:

SB1064,10,20 103.10 (7) (b) 1. That the child, spouse, domestic partner, parent, family member or employee has a serious health condition.

SB1064,34 Section 34 . 103.10 (7) (d) of the statutes is created to read:

SB1064,11,2 103.10 (7) (d) If an employee requests leave under sub. (3) (b) 4., the employer may require the employee to provide certification that the family member 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.

SB1064,35 Section 35. 103.10 (8m) of the statutes is created to read:

SB1064,11,7 103.10 (8m) Self-attestation for victim of domestic abuse, sexual abuse, or stalking. If an employee requests leave under sub. (3) (b) 5. to 8., the employer may require the employee to provide a self-attestation that the employee or the employee's family member is the victim of domestic abuse, sexual abuse, or stalking.

SB1064,36 Section 36. 103.10 (11) (d) of the statutes is created to read:

SB1064,11,11 103.10 (11) (d) No employer may consider leave taken under this section as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action against an employee.

SB1064,37 Section 37 . 103.10 (12) (c) of the statutes is amended to read:

SB1064,11,19 103.10 (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, family member 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 percent of the cost of the examination and opinion.

SB1064,38 Section 38. 103.10 (14) (a) of the statutes is amended to read:

SB1064,12,3 103.10 (14) (a) Each employer shall post, in one or more conspicuous places where notices to employees are customarily posted, a notice in a form approved by the department setting forth employees' rights under this section. Each employer shall provide such a written notice to each employee upon hiring and annually thereafter, when an employee requests leave, and when the employer learns that an employee's leave request may be for family or medical leave under this section. Any employer who violates this subsection shall forfeit not more than $100 for each offense.

SB1064,39 Section 39 . 103.10 (14) (b) of the statutes is repealed.

SB1064,40 Section 40. 103.10 (14) (c) and (d) of the statutes are created to read:

SB1064,12,7 103.10 (14) (c) The notice required under this subsection shall include all of the following:

SB1064,12,8 1. An employee's right to family or medical leave under this section.

SB1064,12,9 2. The amount of family or medical leave generally available for employees.

SB1064,12,10 3. The procedure for requesting family or medical leave.

SB1064,12,12 4. The prohibition on discriminatory or retaliatory personnel actions against a person for requesting or taking family or medical leave.

SB1064,12,13 5. An employee's right to file a complaint for violations of this section.

SB1064,12,17 (d) The notice required under this subsection shall be provided in English, the language typically used in communications between the employer and an individual employee, and any other language that is the primary language of at least 20 percent of employees at a workplace.

SB1064,41 Section 41 . 103.105 of the statutes is created to read:

SB1064,12,20 103.105 Family and medical leave insurance program. (1) Definitions. In this section:

SB1064,12,23 (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.

SB1064,13,3 (b) “Average weekly earnings" means one-thirteenth of the earnings from the quarter of a covered individual's base period in which the individual's earnings were the highest.

SB1064,13,5 (c) “Base period” means the period that is used to compute a covered individual's benefit rights under this section consisting of one of the following:

SB1064,13,7 1. The first 4 of the 5 most recently completed quarters preceding the first day of a covered individual's application year.

SB1064,13,10 2. If the first quarter of the 5 most recently completed quarters was included in the base period applicable to a covered individual's application year, the last 4 completed calendar quarters.

SB1064,13,13 3. If a covered individual does not qualify to receive benefits using the period described in subd. 1. or 2., the period consisting of the 4 most recently completed quarters preceding the individual's application year.

SB1064,13,16 (d) “Child" means a natural, adopted, or foster child, a stepchild, the child of a domestic partner, a child for whom the covered individual stands or stood in the place of a parent, or a legal ward.

SB1064,13,21 (e) “Covered individual" means an individual who worked for any employer or employers and earned at least $1,000 during the base period or a self-employed individual who elects coverage under sub. (2), regardless of whether the individual is employed or unemployed at the time the individual files an application for family or medical leave insurance benefits.

SB1064,13,22 (f) “Domestic partner" has the meaning given in s. 40.02 (21c) or 770.01 (1).

SB1064,13,23 (g) “Employee" means an individual employed in this state by an employer.

SB1064,14,3 (h) “Employer" means a person engaging in any activity, enterprise, or business in this state. “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.

SB1064,14,6 (i) “Family leave" means leave from employment, self-employment, or availability for employment for a reason specified in s. 103.10 (3) (b) 1. to 8. or 103.11 (4).

SB1064,14,9 (j) “Family or medical leave insurance benefits" means family or medical leave insurance benefits payable under this section from the family and medical leave insurance trust fund.

SB1064,14,17 (k) “Family member” means a spouse or domestic partner of a covered individual; a parent, child, sibling, brother-in-law, sister-in-law, grandparent, stepgrandparent, or grandchild of a covered individual or a covered individual's spouse or domestic partner; or any other person who is related by blood, marriage, or adoption to a covered individual or to a covered individual's spouse or domestic partner or whose close association with the covered individual, spouse, or domestic partner makes the person the equivalent of a family member of the covered individual, spouse, or domestic partner.

SB1064,14,18 (L) “Grandchild" means the child of a child.

SB1064,14,19 (m) “Grandparent" means the parent of a parent.

SB1064,14,24 (n) “Medical leave” means leave from employment, self-employment, or availability for employment when a covered individual has a serious health condition that makes the individual unable to perform the individual's employment or self-employment duties or makes the individual unable to perform the duties of any suitable employment.

SB1064,15,4 (o) “Parent" means a natural parent, foster parent, adoptive parent, stepparent, legal guardian of a covered individual or a covered individual's spouse or domestic partner, or individual who stood in the place of a parent when the covered individual or the covered individual's spouse or domestic partner was a minor.

SB1064,15,7 (p) “Self-employed individual” means a sole proprietor, independent contractor, partner of a partnership, member of a limited liability company, or other self-employed individual engaged in a vocation, profession, or business in this state.

SB1064,15,8 (q) “Serious health condition" has the meaning given in s. 103.10 (1) (g).

SB1064,15,10 (r) “Sibling" means a brother, sister, half brother, half sister, stepbrother, or stepsister, whether by blood, marriage, adoption, or foster relationship.

SB1064,15,11 (s) “Spouse" means a covered individual's legal husband or wife.

SB1064,15,23 (2) Election by self-employed individual. A self-employed individual may elect to be covered under this section by filing a written notice of election with the department in a form and manner prescribed by the department by rule. An initial election under this subsection becomes effective on the date on which the notice of election is filed, shall be for a period of not less than 3 years, and may be renewed for subsequent one-year periods by the filing of a written notice with the department that the self-employed individual intends to continue coverage under this section. A self-employed individual who elects coverage under this section may withdraw that election no earlier than 3 years after the date of the initial election or at such other times as the department may prescribe by rule by providing notice of that withdrawal to the department not less than 30 days before the expiration date of the election.

SB1064,16,4 (3) Eligibility for benefits. (a) A covered individual who is on family or medical leave is eligible to receive family or medical leave insurance benefits in the amount specified in sub. (4) and for the duration specified in sub. (5). No family or medical leave insurance benefits are payable for any period of family or medical leave for which a covered individual is receiving unemployment insurance benefits under ch. 108 or worker's compensation benefits under ch. 102 for a total disability.

SB1064,16,20 (b) To receive family or medical leave insurance benefits, a covered individual shall file a claim for those benefits not more than 60 days before the anticipated start date of family or medical leave and not more than 90 days after the start date in the manner that the department prescribes by rule. The department may waive the 90-day deadline for good cause. On receipt of a claim for family or medical leave insurance benefits, the department may request from the employee's employer or from the self-employed individual any information necessary for the department to determine the individual's eligibility for those benefits and the amount and duration of those benefits. The employer or self-employed individual shall provide that information to the department within the time and in the manner that the department prescribes by rule. A covered individual is not required to provide exact dates of leave on an application for benefits, and the department may modify benefits amounts through a claims modification process. If the department determines that a covered individual is eligible to receive family or medical leave insurance benefits, the department shall provide those benefits to the individual as provided in subs. (4) to (6).

SB1064,16,24 (4) Amount of benefits. (a) For the purposes of this subsection, average weekly earnings shall be calculated as set forth in s. 102.11 (1). Subject to pars. (b) and (c), the amount of family or medical leave insurance benefits for a week of leave for which those benefits are payable is as follows:

SB1064,17,3 1. For the amount of the covered individual's average weekly earnings that are up to 50 percent of the state average weekly earnings as determined under s. 108.05, 90 percent of that individual's average weekly earnings.

SB1064,17,6 2. For the amount of the covered individual's average weekly earnings that are more than 50 percent of the state average weekly earnings as determined under s. 108.05, 50 percent of that individual's average weekly earnings.

SB1064,17,11 (b) The amount of family or medical leave insurance benefits for a fractional week of leave for which those benefits are payable is one-seventh of the covered individual's weekly benefit amount under par. (a), multiplied by the number of days of leave taken that week. Family or medical leave insurance benefits are not payable for a period of leave of less than one day in duration.

SB1064,17,15 (c) The maximum weekly benefit amount of a covered individual's family or medical leave insurance benefits is the state average weekly earnings, as determined under s. 108.05. The department shall annually have the maximum amount of the weekly benefit published in the Wisconsin Administrative Register.

SB1064,17,21 (d) Subject to the maximum amount provided under this subsection, the benefit amount for a covered individual shall be based on the proportion of the covered individual's typical workweek spent at the employment from which the covered individual is taking family or medical leave. A covered individual who has more than one employer and who is receiving benefits based on the individual's employment with one employer may continue to work and receive pay from another employer.

SB1064,18,2 (5) Duration of benefits. (a) The maximum number of weeks for which family or medical leave insurance benefits are payable in an application year is 12 weeks for any leave specified under ss. 103.10 (3) (b) 1. to 8 and 103.11 and 14 weeks for any combination of leave specified under ss. 103.10 (3) and (4) and 103.11. A covered individual may be paid family or medical leave insurance benefits continuously or, at the option of the covered individual, intermittently.

SB1064,18,8 (b) Family or medical leave insurance benefits are payable beginning on the first day that a covered individual takes family or medical leave. The first payment of family or medical leave insurance benefits shall be made no later than one week after a covered individual files a claim for those benefits or within one week of the first day the claim is approved, whichever is later. Subsequent payments shall be made no less often than semimonthly.

SB1064,18,16 (6) Employer-provided benefits. (a) Nothing in this section prohibits an employer from providing employees with rights to family or medical leave insurance benefits that are more generous to the employee than the benefits provided under this section. Except as provided in par. (b), no employer may require an employee to use or exhaust paid leave or other benefits provided by an employer before or while receiving benefits under this section. An employee may use any accrued paid leave benefits while receiving benefits under this section, unless the aggregate amount of money would exceed the employee's average weekly earnings.

SB1064,18,21 (b) An employer may require that benefits paid under this section be coordinated with payments under the terms of a short-term disability policy, a stand-alone bank of paid leave designated solely for family or medical leave, or under a collective bargaining agreement or employer policy. An employer shall provide employees with written notice of this requirement.

SB1064,18,25 (7) Position upon return from leave. (a) When an employee who receives benefits under this section returns from family leave or medical leave, the employee's employer shall follow the procedures set forth in s. 103.10 (8) to place the employee in a position with the employer.

SB1064,19,4 (b) No employer may, because an employee received family or medical leave insurance benefits, reduce or deny an employment benefit that accrued to the employee before the employee's leave began or, consistent with s. 103.10 (8), accrued after the employee's leave began.

SB1064,19,7 (8) Tax treatment of benefits. With respect to the federal income taxation of family or medical leave insurance benefits, the department shall do all of the following:

SB1064,19,9 (a) Request an opinion from the internal revenue service on the taxability of the benefits under federal law.

SB1064,19,15 (b) At the time a covered individual files a claim for those benefits, advise the individual that those benefits may be subject to federal income taxation, that requirements exist under federal law pertaining to estimated tax payments, and that the individual may elect to have federal income taxes withheld from the individual's benefit payments and may change that election not more than one time in an application year.

SB1064,19,19 (c) Allow the covered individual to elect to have federal income tax deducted and withheld from the individual's benefit payments, allow the individual to change that election not more than one time in an application year, and deduct and withhold that tax in accordance with the individual's election as provided under 26 USC 3402.

SB1064,19,22 (d) Upon making a deduction under par. (c), transfer the amount deducted from the family and medical leave insurance trust fund to the federal internal revenue service.

SB1064,19,25 (e) In deducting and withholding federal income taxes from a covered individual's benefit payments, follow all procedures specified by the federal internal revenue service pertaining to the deducting and withholding of federal income tax.

SB1064,20,11 (9) Family and medical leave insurance trust fund. (a) The department shall determine the amount of the required contribution by each employee, self-employed individual who elects coverage under sub. (2), and each employer. The required contribution shall be based on the employee's wages or the self-employed individual's earnings. Except as otherwise provided in this paragraph, the required contribution for an employee shall be equally shared between each employee and the employee's employer. For an employer with 50 or fewer employees, the department shall establish tiers of reduced contribution rates based on the number of the employer's employees. No employer contribution is required from self-employed individuals, and such individuals shall be required to pay only one-half of the required contribution.

SB1064,20,13 (b) Each employer shall withhold from the wages of its employees the amount determined by the department under this subsection.

SB1064,20,18 (c) The department shall collect the contributions withheld by employers and employer-required contributions under par. (a) in the same manner as the department collects contributions to the unemployment reserve fund under s. 108.17. Section 108.10 applies to issues regarding liability of employers for contributions under this subsection.

SB1064,20,20 (d) The department shall collect contributions from self-employed individuals pursuant to procedures established by the department under sub. (13) (b).

SB1064,20,23 (e) The department shall deposit contributions received under this subsection into the family and medical leave insurance trust fund and credit them to the appropriation account under s. 20.445 (1) (w).

SB1064,21,2 (f) The department shall use moneys deposited into the family and medical leave insurance trust fund to pay benefits under sub. (3) and to pay for the administration of the family and medical leave insurance program under this section and for no other purpose.

SB1064,21,9 (10) Denial of claims; overpayments. (a) A covered individual whose claim for family or medical leave insurance benefits is denied by the department, or who believes that benefits approved under this section are less than what the individual is entitled to receive, may request a hearing on the denial or approved benefits, and the department shall process the request for a hearing in the same manner that requests for hearings on unemployment insurance claims are processed under s. 108.09.

SB1064,21,21 (b) If the department pays family or medical leave insurance benefits erroneously or as a result of willful misrepresentation, the department may seek repayment of those benefits in the same manner that the department recovers erroneous payments of unemployment insurance benefits under ss. 108.095, 108.22 (8), and 108.225. The department may waive recovery of an erroneous payment of family or medical leave insurance benefits if the erroneous payment was not the fault of the individual who received it and if requiring repayment would be contrary to equity and good conscience. 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 under this section, the department may determine that the individual is disqualified from receiving those benefits for up to one year after the date of the disqualification.

SB1064,21,23 (11) Prohibited acts. (a) No person may interfere with, restrain, or deny the exercise of any right provided under this section.

SB1064,22,3 (b) No person may discharge or otherwise discriminate or retaliate against any person for exercising any right provided under this section, opposing a practice prohibited under this section, filing a complaint or attempting to enforce any right provided under this section, or testifying or assisting in any action or proceeding to enforce any right provided under this section.

SB1064,22,7 (c) No collective bargaining agreement or employer policy may diminish or abridge an employee's rights under this section, including any policy regarding employee absences. Any agreement purporting to waive or modify an employee's rights under this section is void as against public policy and unenforceable.

SB1064,22,20 (12) Enforcement. (a) Any individual who believes that his or her rights under this section have been interfered with, restrained, or denied in violation of sub. (11) (a) or that he or she has been discharged or otherwise discriminated against in violation of sub. (11) (b) may, within 60 days after the violation occurs or the individual should reasonably have known that the violation occurred, whichever is later, file a complaint with the department alleging the violation, and the department shall process the complaint in the same manner as complaints filed under s. 103.10 (12) (b) are processed. If the department finds that an employer has violated sub. (11) (a) to (c), the department may order the employer to take action to remedy the violation, including providing the requested family or medical leave, reinstating an employee, providing back pay accrued not more than 2 years before the complaint was filed, and, notwithstanding s. 814.04 (1), paying reasonable actual attorney fees to the complainant.

SB1064,22,25 (b) After the completion of an administrative proceeding under par. (a), including judicial review, an employee or the department may bring an action in circuit court against an employer to recover damages caused by a violation of sub. (11) (a) to (c). Section 103.10 (13) (b) applies to the commencement of an action under this paragraph.

SB1064,23,3 (13) Administration. The department shall administer the family and medical leave insurance program under this section. In administering the program, the department shall do all of the following:

SB1064,23,5 (a) Establish procedures and forms for filing claims for benefits under this section.

SB1064,23,7 (b) Establish procedures and forms for collecting contributions from self-employed individuals.

SB1064,23,8 (c) Collect demographic information of claimants.

SB1064,23,9 (d) Promulgate rules to implement this section.

SB1064,23,12 (e) Use information sharing and integration technology to facilitate the exchange of information as necessary for the department to perform its duties under this section.

SB1064,23,17 (f) Conduct a public outreach campaign to inform employers, employees, self-employed individuals, and other covered individuals regarding the family and medical leave insurance program under this section. Information provided under this paragraph shall be provided in English and in any other language customarily spoken by more than 20 percent of the population of this state.

SB1064,23,21 (g) By September 1 of each year, submit a report to the governor, the joint committee on finance, and the appropriate standing committees of the legislature under s. 13.172 (3) on the family and medical leave insurance program under this section. The report shall include all of the following:

SB1064,23,23 1. The projected and actual rates of participation in the program, aggregated by reason for use of the paid leave benefits.

SB1064,23,24 2. The premium rates for coverage under the program.