Plain Language Analysis
Chapter DWD 226 implements the provisions of s. 103.11, Stats. The chapter includes requirements for determining whether an employer is subject to that statute and whether an employee is eligible for bone marrow or organ donor leave under the statute. The chapter specifies how and when eligible employees may take the leave and includes requirements for scheduling, providing notice, and denying requests for the leave. The chapter also includes requirements for 1) substituting other paid or unpaid leave for bone marrow or organ donor leave and 2) extending bone marrow or organ donor leave with other paid or unpaid leave. The statute requires employers to maintain group health insurance coverage for employees who take leave under the same conditions that applied prior to the leave and allows employers to require employees to pay health insurance premiums into an escrow account. The chapter prohibits employers from denying leave based on nonpayment of the premiums and imposes other requirements regarding the payments. The chapter allows employees to file complaints with the department alleging that employers have violated the statute. The statute requires complaints to be filed within 30 days after a violation occurs or an employee reasonably knows that a violation occurred, whichever is later, and the chapter includes requirements for determining when employees reasonably knew about a violation. The chapter also includes provisions for the following: 1) amendment or withdrawal of complaints by employees; 2) notification of employers who are the subject of complaints; 3) dismissal of complaints that do not satisfy a preliminary review conducted by the department; 4) investigations of complaints by the department; 5) initial determinations by the department of whether there is probable cause to believe that violations have occurred; 6) dismissal of complaints that the department determines lack probable cause or that fail to satisfy other specified requirements; 7) dismissal of complaints based on employees' failure to respond to correspondence from the department; 8) appeals of complaint dismissals; and 9) settlement of complaints.
If the department makes an initial determination that there is probable cause that a violation occurred, the chapter requires the department to certify the case to a hearing on the merits of the complaint before an administrative law judge (ALJ). The chapter includes requirements for hearing notices, employer answers to complaints, pre-hearing conferences and discovery, subpoenas, motions, ALJ disqualification, service of witness lists and copies of exhibits, and facsimile or email filings, as well as requirements for conducting and recording hearings. After a hearing on the merits, the chapter requires an ALJ to issue a decision and order that either dismisses the allegations or orders the employer to take action to effectuate the purposes of the statute. If an employee prevails in the case, the chapter allows the ALJ to award the employee reasonable attorney fees. If a complainant appeals a no probable cause finding, the chapter requires an ALJ to hold a hearing on probable cause and dismiss allegations that the ALJ finds lack probable cause. Under the chapter, judicial review is allowed only for final decisions and orders of the ALJ, which are those decisions that dispose of an entire complaint and leave no further proceedings on the complaint pending before the department.
Summary of, and comparison with, existing or proposed federal regulations
The Family and Medical Leave Act of 1993 (FMLA), 29 USC 2601 et seq., as amended, entitles eligible employees who work for covered employers to take unpaid, job-protected leave with continuation of group health insurance coverage for specified family and medical reasons, including inability to work because of a serious health condition. Although FMLA and its implementing regulations do not specifically refer to bone marrow and organ donation, the recovery time from donation would likely qualify as a "serious health condition" and be covered under FMLA. Comparison with rules in adjacent states
An Illinois law allows state employees to take paid leave of up 30 days for organ or bone marrow donation. 5 ILCS 327. An Iowa law allows state employees to take up to 30 days paid leave for organ donation and up to 5 days for bone marrow donation. Iowa Code 70A.39. Under Minnesota laws, state and local employees may take up to 40 hours paid leave for organ donations and state, local, and private employees may take up to 40 hours paid leave for bone marrow donation. 2019 Minnesota Statutes 181.945 and 181.9456. Michigan does not have comparable laws.
Summary of factual data and analytical methodologies
Development of this rule did not involve the gathering, analysis, or use of data. Therefore, Wis. Stat. s. 227.14 (2m) does not apply to this rulemaking. Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis
The Statement of Scope for the rule was posted for 14 days to solicit comments on economic impact from the public and no comments were received.
Fiscal Estimate and Economic Impact Analysis
The Fiscal Estimate and Economic Impact Analysis is attached.
Effect on small business
Because this rule only pertains to employers with 50 or more employees, the proposed rule is not anticipated to impact small businesses, as defined in s. 227.114 (1), Stats. The proposed rule is anticipated to have an economic impact on employers with 50 or more employees if an employee serves as a bone marrow or organ donor.
Agency contact person
Questions and comments related to this rule may be directed to:
Jim Chiolino, Director of Bureau of Hearings & Mediation
Equal Rights Division
Wisconsin Department of Workforce Development
PO Box 8928
Madison, WI 53708-8928
Telephone: (608) 405-4585
Place where comments are to be submitted and deadline for submission
Mark Kunkel, Rules and Records Coordinator
Department of Workforce Development
P.O. Box 7946
Madison, WI 53707
Telephone: (608) 267-7713
Comments may be submitted no later than December 29, 2021.
Section 1. DWD 226 is created to read:
BONE MARROW AND ORGAN DONOR LEAVE
DWD 226.001 Purpose. This chapter implements the provisions of s. 103.11, Stats., providing for bone marrow and organ donor leave for employees in certain cases and prohibiting certain practices by establishing interpretations of the provisions of that section to assist in its implementation. DWD 226.01 Definitions and scope. (1) When used in this chapter or in s. 103.11, Stats., the following definitions apply: (a) "12−month period,” as used in s. 103.11 (4), Stats., means a calendar year commencing at 12:01 a.m. on January 1 and ending at midnight on December 31 each year. (b) "12−month period," as used in s. 103.11 (9) (c) 2., Stats., means a period of 365 consecutive days commencing with the date the first payment is required by an employer to be paid by an employee under s. 103.11 (9) (c), Stats. (c) “Administrative law judge” means the examiner appointed to conduct hearings under s. 103.11 (12), Stats. (d) "Complainant” means the person who files a complaint alleging a violation under s. 103.11, Stats. (e) “Day” means a calendar day. When used in time computations, “day” means a calendar day, except that if the last day of the time period is a Saturday, Sunday, or legal holiday, the last day shall be the next business day.
(f) "Department" means the Wisconsin department of workforce development.
(g) "Employee" means an individual employed in this state by an employer.
(h) "Employer” means a person engaging in any activity, enterprise, or business in this state employing at least 50 individuals on a permanent basis, and 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.
(i) “Filing” means the physical or electronic receipt of a document by the department, including receipt by hand delivery, US mail, facsimile, email, or receipt on the department's website.
(j) “Group health insurance coverage” means the entire health insurance package offered by an employer including, medical, dental, or vision insurance.
(k) “Probable cause” means a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person in the belief that one or more actions prohibited by s. 103.11 (11), Stats., probably has been or is being committed. (L) “Respondent” means the person or agency alleged to have committed one or more actions prohibited by s. 103.11 (11) Stats. (m) "Week" as used in s. 103. 11 (3) (b), Stats., means 7 consecutive days.
(2) An employer shall be deemed to be “employing at least 50 individuals on a permanent basis” within the meaning of s. 103.11 (1) (c), Stats., if, during at least 6 of the preceding 12 calendar months, with partial months to count as full months, the employer, according to its usual personnel recordkeeping practices, actually treated at least 50 individuals as being permanent employees as to the activities, enterprises, or businesses of that employer. (3) An employee shall be deemed to have “been employed by the same employer for more than 52 consecutive weeks” within the meaning of s. 103.11 (3) (b), Stats., if the person has actually been treated by the employer, according to the usual personnel recordkeeping practices of the employer, as an employee during each of those 52 weeks, irrespective of the number of hours worked in those weeks and notwithstanding that the employee may have, in that 52−week period, been off work for one or more weeks on vacation leave, sick leave, or other leave, or on layoff, if such vacation leave, sick leave, or other leave was granted to the employee by the employer according to a regular practice of granting such leaves, or the layoff was initiated by the employer, and if the employer allowed the employee to return to work at the end of the leave or layoff without having to reapply for employment. (4) Under s. 103.11 (3) (b), Stats., a person shall be deemed to have “worked for the employer for at least 1,000 hours during the preceding 52−week period,” if the number of hours actually worked in that period plus the number of hours for which the employee was paid pursuant to a regular policy of paid vacation leave, sick leave, or other paid leave equals at least 1,000 hours. (5) Where an employer's policy with respect to leave for the purpose of serving as a bone marrow or organ donor is to provide the same leave as granted in s. 103.11 (4), Stats., the posting of a statement to that effect together with a copy of s. 103.11, Stats., in the manner prescribed by s. 103.11 (14) (b), Stats., shall satisfy the requirements of s. 103.11 (14) (b), Stats. (6) To the extent that an employer grants leave to an employee relating to the employee’s service as a bone marrow or organ donor in a manner which is no more restrictive than the leave available to that employee under s. 103.11 (4), Stats., the leave granted by the employer shall be deemed to be leave available to that employee under s. 103.11 (4), Stats.
DWD 226.02 When and how leave taken. (1) The leave allowed under s. 103.11, Stats., may be taken in non−continuous increments. An employee may schedule and take partial absence leave in actual increments of less than a full workday if the employer allows any other leave to be taken in increments of less than a full workday. The duration of the shortest increment available to the employee under s. 103.11, Stats., shall be equal to the shortest increment the employer allows to be taken by that employee for any other non−emergency leave. Such partial leave must be necessary for the employee to undergo the bone marrow or organ donation procedure and to recover from it. (2) For partial leave purposes, a "week" means 5 days of leave which would otherwise be workdays for the requesting employee.
(3) (a) An employee shall be deemed to have scheduled partial absence that does not "unduly disrupt the employer’s operations” within the meaning of s. 103.11 (6) (a), Stats., if all of the following apply: 1. The employee provides the employer with notice of the employee’s proposed schedule of partial absence which is at least as much notice as the shortest notice that employee is required to give the employer for the taking of any other non−emergency or non−medical leave.
2. The schedule under subd. 1. is sufficiently definite for the employer to be able to schedule replacement employees, to the extent replacement employees are required, to cover for the absences.
(b) If an employer has a written policy which requires notice of scheduled partial absences to be in writing, if this policy governs all employees of the employer within this state, and if the employee has been made aware of this policy, the employee shall advise the employer under this subsection in writing.
(4) (a) An employee shall be deemed to have given the employer “advance notice of the bone marrow or organ donation in a reasonable and practicable manner” within the meaning of s. 103.11 (6) (b), Stats., if the notice identifies the planned dates of the leave and is given to the employer by the employee with reasonable promptness after the employee learns of the probable necessity of the leave. (b) If the employer has a written policy which requires notice of leave under s. 103.11 (6) (b), Stats., to be in writing, if this policy governs all employees of the employer within this state, and if the employee has been made aware of this policy, the notice required by s. 103.11 (6) (b), Stats., shall be in writing, except where precluded by the need for health care consultation or treatment.
