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 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.
10. Any analysis and supporting documents used in support of the agency’s determination of the rule’s effect on small business or in preparation of economic impact report:
The proposed rule has no effect on small businesses because only governmental employers and their employees are governed by ch. 230, Wis. Stats., as administered by the Department of Administration, Division of Personnel Management. 11. Email address and telephone number of agency contact person:
Nicole Rute, Human Resources Program Officer
Department of Administration
Division of Personnel Management
101 E. Wilson Street
P.O. Box 7855
Madison, WI 53707-7855
Telephone: (608) 267-1019
12. Place where comments are to be submitted and deadline for submission:
Questions and comments (including hearing comments) related to these rules may be directed to:
Nicole Rute
Division of Personnel Management
Department of Administration
101 East Wilson Street
P.O. Box 7855
Madison, WI 53707-7855
Telephone: (608) 267-1019
Rule comments will be accepted until close of business on January 26, 2021.
RULE TEXT
Section 1. ER 18.01 (6m) is created to read:
ER 18.01 (6m) “Public health emergency” means a public health emergency declared by the Governor under s. 323.10, Stats., a public health emergency declared by the Secretary of Health and Human Services under 42 U.S.C. 247d, or an emergency declared by a governing body of a local unit of government under s. 323.11, Stats. Section 2. ER 18.03 (4) (cm) is created to read:
ER 18.03 (4) (cm) If authorized by the administrator, during a public health emergency for temporary care of members of the immediate family, or a child to whom the employee stands in loco parentis as defined under 29 CFR s. 825.122(d)(3), for a limited period of time for a reason that is specifically related to the public health emergency. Such reasons may include when the individual requiring care has been exposed to a contagious disease which requires the individual’s confinement, or when the employee lacks needed child care because schools or other places of care are closed or unavailable as a result of the public health emergency. Use of sick leave for these purposes is limited to the period of time required for confinement, closure, or unavailability. Use of sick leave under this paragraph is subject to authorization of the administrator based upon consideration of the nature of the public health emergency and the operational needs of the state. An appointing authority may require documentation to justify the granting of sick leave under this subsection. Section 3: Effective Date. This rule shall take effect on the first day of the month following publication in the Wisconsin Administrative Register as provided in s. 227.22(2)(intro), Wis. Stats. Dated this __ day of ___________, 2021.
STATE OF WISCONSIN
DEPARTMENT OF ADMINISTRATION
DIVISION OF PERSONNEL MANAGEMENT
________________________________
Malika S. Evanco
