The Wisconsin Department of Administration proposes an order to create Wis. Admin. Code §§ ER 18.01(6m) and 18.03(4)(cm); relating to Absence provisions.
Rule Analysis prepared by the Department of Administration
1. Citations to statutes interpreted:
Sections 230.04 and 230.35, Wis. Stats.
2. Citations to statutory authority:
Sections 227.11 (2) (a), 230.04 (1), 230.04 (5), and 230.35 (2), Wis. Stats.
3. Explanation of the agency’s statutory authority to promulgate the rule under the statutes cited:
The Department of Administration, Division of Personnel Management is responsible for the promulgation of rules relating to the administration of the division and the effective operation of subch. II of ch. 230 of the Wisconsin Statutes. The proposed rule changes are authorized by ss. 230.04 (1), and 230.04 (5), Wis. Stats., being necessary for performance of duties assigned to the administrator and necessary for the effective operation of subch. II of ch. 230 of the Wisconsin Statutes. Paragraph (a) of s. 227.11 (2), Wis. Stats., also authorizes the department to prescribe forms and procedures and promulgate rules interpreting the provisions of ch. 230 to the extent necessary to effectuate the purpose of the statute.
In addition to the authority provided in ss. 230.04 (1), 230.04 (5) and 227.11(2), Wis. Stats., the administrator has additional statutory authority to promulgate rules governing the use of sick leave under s. 230.35 (2), Wis. Stats.
4. Related statutes or rules:
5. Brief plain language summary of the proposed rule:
Chapter ER 18 of the Wisconsin Administrative Code contains the current rules governing absences for state employees, including rules that permit employees to use accrued sick leave to care for immediate family members only when the family member is ill or injured and in need of emergency medical care. Additionally, in some situations, prior approval is currently required for any use beyond 5 working days. The proposed rule provides modifications to the rules governing absences to allow employees greater flexibility to use earned leave during a public health emergency. The proposed rule creates a limited exception that allows the administrator to authorize employees to use sick leave for the care of individuals who require the employee’s general care, regardless of whether they are sick or not, for the necessary period of time without requiring prior appointing authority approval. For the exceptions to apply, the individual requiring care must be a member of the employee’s immediate family, as defined in s. ER 18.01(4), Wis. Admin. Code, or a child to whom the employee stands in loco parentis, as the term is defined in 29 CFR s. 825.122(d)(3). Furthermore, the reason for care must specifically be related to a public health emergency, and use of sick leave under this exception may not exceed the period of time required for the confinement of the immediate family member requiring care or the closure of schools or unavailability of child care. The administrator’s authorization will be based upon consideration of the nature of the public health emergency and the operational needs of the state.
6. Summary of, and preliminary comparison with, any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule:
The Families First Coronavirus Response Act (FFCRA) provided federal Emergency Paid Sick Leave (EPSL) and Expanded FMLA leave (EFMLA) for state employees beginning April 1, 2020 and in effect through December 31, 2020. These leave provisions are in addition to any leave programs offered by the state. The rules being proposed are intended to provide coverage after the federal leave options have expired
7. Comparison with similar rules in Illinois, Iowa, Michigan, and Minnesota:
All states, as required by the FFCRA, have implemented EPSL and EFMLA for employees to provide for paid time off for employees related to COVID-19 reasons, including to care for a child due to school or daycare closures.
The State of Iowa has a current Administrative Rule waiver in place to remove their 40 hour cap on the use of sick leave by an employee to provide care and necessary attention of an immediate family member for the specific purpose of COVID-19. https://das.iowa.gov/sites/default/files/core/WAIVERS/D2020-5.pdf
The State of Minnesota does not have any similar administrative rules addressing sick leave for state employees. However, Minnesota Management and Budget, which establishes statewide standards outside of the Administrative Procedures process, has issued two HR/LR policies implementing EPSL and EFMLA as required under the FFCRA. See HR/LR Policy 1440 and 1441 respectively.
The State of Michigan’s State Personnel Director issued emergency amendments to Civil Service Regulation 5.10 on sick leave to allow employees to use sick leave to provide childcare when school or place of care or childcare provider is closed or unavailable, due to COVID-19 precautions or to provide care to a family member who is subject to an isolation order related to COVID-19. See the following official communications of the State Personnel Director for March 13, 2020 (SPDOC 20-02) and August 31, 2020 (SPDOC 20-10)
At this time the department was unable to identify any similar administrative rules in Illinois that have been drafted or implemented in response to COVID-19.
8. Summary of the factual data and analytical methodologies that the agency used in support of the proposed rule and how any related findings support the regulatory approach chosen for the proposed rule:
The Department considered information available from the Department of Health Services relating to the COVID-19 pandemic in Wisconsin and the impact on schools. In reviewing the Department of Health Services’ weekly COVID-19 facilities update, as of December 9, 2020, there have been 1,155 schools, colleges, or day care centers with two or more confirmed cases. Of these, 768 are categorized as “active investigations,” meaning fewer than four weeks had passed since the last possible exposure within those facilities. This is up from October 28, 2020, where there were 668 total and 542 active investigations for educational facilities. Some cases within educational facilities continue to force some districts to close buildings, move to online learning, at least temporarily, and delay re-opening plans.
The Department also considered federal leave available through the FFCRA. Leave available under the FFCRA is limited and will expire after December 31, 2020. However, the impacts of the COVID-19 pandemic are likely to remain beyond the exhaustion of FFCRA leave by individual employees and the expiration of FFCRA leave as a whole. In addition, the pay for employees using this leave has a cap of 2/3 the employee’s rate of pay, capped at $200 per day. Employees may substitute, or in some case supplement, this federal leave with available state leave.
Revising Ch. ER 18 is necessary to provide continued flexibilities for employees to care for their children and immediate family members impacted by the COVID-19 pandemic and provide the ability to provide for such flexibilities during future pandemics or public health emergencies as the needs of the service require.
The Department held a preliminary public hearing on the scope statement on October 22, 2020, and a public hearing on the Emergency Rule (EmR2042) currently in effect on December 3, 2020, in which no members of the public participated nor submitted comments for consideration.
9. Effect on small business:
The rule has no effect on small businesses.
Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.