SB1064: Bill Text

LRB-5890/1

MIM:wlj&amn

2023 - 2024 LEGISLATURE

2023 Senate BILL 1064

February 26, 2024 - Introduced by Senators L. Johnson, Roys, Carpenter, Smith, Agard, Spreitzer, Larson, Hesselbein, Wirch and Pfaff, cosponsored by Representatives Hong, Haywood, Joers, Conley, C. Anderson, Moore Omokunde, Snodgrass, Stubbs, Clancy, Ohnstad, Madison, Sinicki, Baldeh, Emerson, Neubauer, Shelton, Bare, Palmeri, Vining, Ratcliff, Considine, Andraca, J. Anderson, Subeck and Billings. Referred to Committee on Labor, Regulatory Reform, Veterans and Military Affairs.

SB1064,2,5 An Act to repeal 103.10 (1) (a) 1., 103.10 (1) (a) 2., 103.10 (1m) and 103.10 (14) (b); to renumber and amend 103.10 (1) (a) (intro.); to amend 103.10 (1) (b), 103.10 (1) (c), 103.10 (3) (a) 1., 103.10 (3) (a) 3., 103.10 (3) (b) 1., 103.10 (3) (b) 2., 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), 103.10 (14) (a), 103.12 (2), 103.12 (3), 111.322 (2m) (a), 111.322 (2m) (b) and 227.03 (2); to repeal and recreate 165.68 (1) (a) 3.; and to create 20.445 (1) (w), 25.17 (1) (er), 25.52, 103.10 (1) (an), 103.10 (1) (ao), 103.10 (1) (db), 103.10 (1) (dm), 103.10 (1) (dp), 103.10 (1) (gm), 103.10 (1) (gr), 103.10 (1) (j), 103.10 (3) (b) 4., 103.10 (3) (b) 5., 103.10 (3) (b) 6., 103.10 (3) (b) 7., 103.10 (3) (b) 8., 103.10 (6) (c), 103.10 (7) (d), 103.10 (8m), 103.10 (11) (d), 103.10 (14) (c) and (d), 103.105 and 103.12 (4) of the statutes; relating to: the establishment of a family and medical leave insurance program; family leave to care for a family member and for the active duty of a family member; the employers that must allow an employee to take family or medical leave; allowing a local government to adopt ordinances requiring employers to provide leave benefits; providing an exemption from emergency rule procedures; providing an exemption from rule-making procedures; granting rule-making authority; making an appropriation; and providing a penalty.

Analysis by the Legislative Reference Bureau

Introduction

This bill does all of the following: expands the family and medical leave law to allow an employee covered under that law to take family leave to care for a family member and for the active duty of a family member; lowers the threshold number of employees above which an employer must allow 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. The bill defines “family member” as a spouse or domestic partner of an employee or self-employed individual; a parent, child, sibling, brother-in-law, sister-in-law, grandparent, stepgrandparent, or grandchild of an employee or self-employed individual, or of an employee's or self-employed individual's spouse or domestic partner; or any other person who is related by blood, marriage, or adoption to an employee or self-employed individual, or to an employee's or self-employed individual's spouse or domestic partner, and whose close association with the employee, self-employed individual, spouse, or domestic partner makes the person the equivalent of a family member of the employee, self-employed individual, spouse, or domestic partner.

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 allow 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, domestic partner, or parent of the employee or a parent of the spouse or domestic partner 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.

The bill expands the definition of “family leave” to include leave to obtain services or care for, to move the residence of, or to prepare for a civil or criminal action for an employee or the employee's family member who is a victim of domestic abuse, sexual abuse, or stalking.

The bill requires an employer, including the state, to allow an employee to take family leave for up to 12 weeks for the birth, adoption, or placement of a child for foster care and up to 14 weeks in the aggregate for any kind of family leave. The bill also allows an employee to take family leave as provided under current law to care for a family member of the employee who has a serious health condition. In addition, the bill requires an employer to allow an employee to take family leave because of any qualifying exigency, as determined by the Department of Workforce Development by rule, arising out of the fact that the family member of the employee is on deployment with the U.S. armed forces on 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, 2026, 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. For purposes of the bill:

1. A “covered individual" is an individual who worked for any employer and earned at least $1,000 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, adoptive placement, foster placement, or pre-placement activities of a child; to care for a family member who has a serious health condition; because of any qualifying exigency arising out of the fact that the family member is on covered active duty or has been notified of an impending call or order to covered active duty; to obtain services or care for, to move the residence of, or to prepare for a civil or criminal action for an employee or family member who is a victim of domestic abuse, sexual abuse, or stalking; or for bone marrow and organ donation.

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, for the amount of the individual's wages that are up to 50 percent of the state average weekly wages in the calendar year before the individual's application year, 90 percent of that individual's average weekly earnings.

2. For a covered individual, for the amount of the individual's wages that are more than 50 percent of the state average weekly earnings in the calendar year before the individual's application year, 50 percent of that individual's average weekly earnings.

The weekly benefits payable to a covered individual cannot exceed the state average weekly wages.

In addition, the bill provides that family or medical leave insurance benefits are payable beginning on the first day 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 receiving unemployment benefits or worker's compensation benefits.

Beginning on January 1, 2025, 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. Under the bill, an employer with more than 50 employees must contribute one-half of the employee-required contribution. The bill requires DWD to implement tiered rates for contributions by an employer with 50 or fewer employees.

The bill further does the following:

1. Allows a covered individual whose claim for family or medical leave insurance benefits is denied by DWD, or who believes the amount of approved benefits is less than what the individual is entitled to, to request a hearing on the denial or benefits approved 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. Requires employers to place employees who return from family or medical leave, and who received family or medical leave insurance benefits, in the same position or a similar position upon returning from leave and to maintain any health insurance coverage that was in place before the employee took the leave.

3. Allows 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 individual who received it and if requiring repayment would be contrary to equity and good conscience.

4. 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 up to one year after the date of the disqualification.

Finally, the bill allows a city, village, town, or county to enact and enforce ordinances requiring employers to provide leave from employment to their employees if those ordinances are more generous than those provided under state law.

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:

SB1064,1 Section 1 . 20.445 (1) (w) of the statutes is created to read:

SB1064,5,6 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. 103.105 (9) for the payments of family or medical leave insurance benefits under s. 103.105 (3) and for the administration of the family and medical leave insurance program under s. 103.105.

SB1064,2 Section 2 . 25.17 (1) (er) of the statutes is created to read:

SB1064,5,8 25.17 (1) (er) Family and medical leave insurance trust fund (s. 25.52);

SB1064,3 Section 3 . 25.52 of the statutes is created to read:

SB1064,5,13 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. 103.105 (9).

SB1064,4 Section 4 . 103.10 (1) (a) (intro.) of the statutes is renumbered 103.10 (1) (a) and amended to read:

SB1064,5,18 103.10 (1) (a) “Child" means a natural, adopted, or foster child, a stepchild, a child for whom the individual stood or stands in the place of a parent, or a legal ward to whom any of the following applies:.

SB1064,5 Section 5. 103.10 (1) (a) 1. of the statutes is repealed.

SB1064,6 Section 6 . 103.10 (1) (a) 2. of the statutes is repealed.

SB1064,7 Section 7 . 103.10 (1) (an) of the statutes is created to read:

SB1064,6,4 103.10 (1) (an) “Covered active duty" means any of the following:

SB1064,6,6 1. For 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.

SB1064,6,9 2. For 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 under a call or order to active duty under a provision of law specified in 10 USC 101 (a) (13) (B).

SB1064,8 Section 8. 103.10 (1) (ao) of the statutes is created to read:

SB1064,6,11 103.10 (1) (ao) “Domestic abuse” has the meaning given in s. 968.075 (1) (a).

SB1064,9 Section 9 . 103.10 (1) (b) of the statutes is amended to read:

SB1064,6,15 103.10 (1) (b) Except as provided in sub. (1m) (b) 2. and s. 452.38, “employee" means an individual employed in this state by an employer, except the employer's parent, spouse, domestic partner, or child.

SB1064,10 Section 10 . 103.10 (1) (c) of the statutes is amended to read:

SB1064,6,22 103.10 (1) (c) Except as provided in sub. (1m) (b) 3., “employer" “Employer” means a person engaging in any activity, enterprise, or business in this state employing at least 50 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.

SB1064,11 Section 11. 103.10 (1) (db) of the statutes is created to read:

SB1064,7,5 103.10 (1) (db) “Family member” means a spouse or domestic partner of an employee; a parent, child, 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 or 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.

SB1064,12 Section 12 . 103.10 (1) (dm) of the statutes is created to read:

SB1064,7,7 103.10 (1) (dm) “Grandchild" means the child of a child.

SB1064,13 Section 13 . 103.10 (1) (dp) of the statutes is created to read:

SB1064,7,9 103.10 (1) (dp) “Grandparent" means the parent of a parent.

SB1064,14 Section 14. 103.10 (1) (gm) of the statutes is created to read:

SB1064,7,13 103.10 (1) (gm) “Sexual abuse” means conduct that is in violation of s. 940.225, 944.30 (1m), 948.02, 948.025, 948.05, 948.051, 948.055, 948.06, 948.085, 948.09, or 948.10 or that is in violation of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies.

SB1064,15 Section 15 . 103.10 (1) (gr) of the statutes is created to read:

SB1064,7,16 103.10 (1) (gr) “Sibling" means a brother, sister, half brother, half sister, stepbrother, or stepsister, whether by blood, marriage, foster status, or adoption.

SB1064,16 Section 16. 103.10 (1) (j) of the statutes is created to read:

SB1064,7,19 103.10 (1) (j) “Stalking” means to engage in a course of conduct, as defined in s. 940.32 (1) (a), that meets the criteria of s. 940.32 (2) (a).

SB1064,17 Section 17 . 103.10 (1m) of the statutes is repealed.

SB1064,18 Section 18 . 103.10 (3) (a) 1. of the statutes is amended to read:

SB1064,7,23 103.10 (3) (a) 1. In a 12-month period no employee may take more than 6 12 weeks of family leave under par. (b) 1. and, 2., and 4. to 8.

SB1064,19 Section 19. 103.10 (3) (a) 3. of the statutes is amended to read: