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.: (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. NOTE: Section 103.11 (4), Stats., specifies requirements for taking bone marrow and organ donation leave and limits the leave to no more than 6 weeks in a 12-month period. (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. NOTE: Section 103.11 (9) (b) and (c), Stats., apply to employers who maintain group health insurance coverage for employees. If an employee takes bone marrow and organ donation leave, then, during the period of the leave, s. 103.11 (9) (b), Stats., requires the employer to maintain the coverage under the same conditions that applied immediately before the leave began. Section 103.11 (9) (c) 1., Stats., allows the employer to require the employee to have in escrow with the employer an amount equal to the entire premium or similar expense for 8 weeks of the employee's group health insurance coverage. If an employer requires an employee to have that amount in escrow, s. 103.11 (9) (c) 2., Stats., allows the employee to pay the amount to the employer in equal installments at regular intervals over at least a 12-month period. (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. (5) An employee shall be deemed to have made “a reasonable effort” to schedule a leave so that it does not “unduly disrupt the employer’s operations” within the meaning of s. 103.11 (6) (a), Stats., if all of the following apply: (a) The employee provides the employer with a proposed schedule for the leave with reasonable promptness after the employee learns of the probable necessity of the leave.
(b) Except where precluded by the need for health care consultation or treatment, the proposed schedule under par. (a) is sufficiently definite that the employer is able to schedule replacement employees, to the extent replacement employees need to be scheduled, to cover the absence of the employee taking the leave.
(6) Leave requested by an employee may be denied by an employer if the employee substantially fails to provide the employer with notice of the leave as required under s. 103.11 (6), Stats., as interpreted by this section. For purposes of this subsection, an employee is considered to have substantially failed to provide proper notice if the employee fails to do at least two of the following: (a) Provide the notice in writing.
(b) Identify the planned dates of leave.
(c) Provide a proposed schedule for leave with reasonable promptness.
(d) Provide a proposed schedule that is sufficiently definite to allow the employer to schedule replacements, if needed.
(7) Except where emergency health care consultation or treatment is required, an employer may deny a requested leave where the employer has made a request for certification that complies with s. 103.11 (7), Stats., as to that leave, and the employee requesting the leave fails or refuses, after that proper request, to substantially comply with s. 103.11 (7), Stats., as to certification. (8) Leave under this section is available for only the period necessary for the employee to undergo the bone marrow or organ donor procedure or to recover from that procedure. Family or medical leave under s. 103.10, Stats., may also be available to qualified employees. An employer may not designate leave under this section to run concurrently with family or medical leave under s. 103.10, Stats. NOTE: Leave under this section may run concurrently with family or medical leave for which an employee is eligible under the federal family and medical leave act, 29 USC 2601 et seq. (9) No more than 6 weeks of bone marrow and organ donation leave may be taken in a 12-month period. Bone marrow and organ donation leave that begins in one 12-month period and ends in the subsequent 12-month period may not exceed 6 weeks. In this subsection, "12-month period" has the meaning given in s. DWD 226.01 (1) (a). DWD 226.03 Substituting leave. (1) An employee entitled to bone marrow or organ donor leave under s. 103.11, Stats., may substitute, for any leave requested under s. DWD 226.02, any other paid or unpaid leave which has accrued to the employee. (2) Leave substituted for leave available under this section shall be calculated as specified in s. DWD 226.02 (1). (3) The employer may not require an employee to substitute any other paid or unpaid leave available to the employee for either bone marrow or organ donation leave under s. 103.11, Stats. (4) If any other type of leave is substituted for bone marrow and organ donor leave, and any seniority or employment benefit would normally accrue during the taking of that other type of leave, that seniority or employment benefit shall accrue during the taking of that substituted leave.
DWD 226.031 Consecutive leave. If an employee chooses to use leave provided under s. 103.11 (4), Stats., the employee may not extend leave taken by adding leave of any other type provided by the employer, unless any of the following apply: (1) The employee meets the employer’s requirements for taking the other leave which are in effect for all employees.
(2) The employer consents to the extension.
DWD 226.04 Continuation of insurance. (1) An employee shall be deemed to be continuing to make the contributions required of the employee under group health insurance coverage within the meaning of s. 103.11 (9) (b), Stats., if the employee pays the contribution required by the employer within the time required by the employer. (2) The employer may not require the employee to pay the employee’s contribution, except into escrow as provided by s. 103.11 (9) (c), Stats., more frequently, or in greater amounts, than was required of the employee before the leave being taken. (3) The employer may not deny leave under s. 103.11, Stats., based upon nonpayment by the employee into the escrow account. (4) In the event an employer requires an employee to fund an escrow account under s. 103.11 (9) (c), Stats., the employer may pay from the escrow account the amount of the employee’s contribution which either is or becomes due during any leave taken under s. 103.11, Stats. DWD 226.05 Time to commence administrative proceedings. If an employer is not in compliance with the notice posting requirements of s. 103.11 (14) (a), Stats., when a violation occurs under s. 103. 11, Stats., an employee complaining of that violation shall be deemed not to “reasonably have known” that a violation occurred within the meaning of s. 103. 11 (12) (a), Stats., at the time of the violation or the first date that the employee obtains actual knowledge of the information contained in the required notice, whichever date occurs earlier. If the employer is not in compliance with the notice posting requirements of s. 103.11 (14) (a), Stats., when a violation occurs under s. 103. 11, Stats., the employer has the burden of proving actual knowledge on the part of the employee within the meaning of this section. DWD 226.06 Complaints. (1) Who may file a complaint. A complaint may be filed by any person or by the person’s duly authorized representative. A complaint filed by a representative shall state that the representative is authorized to file the complaint.
(2) Where to file complaint. (a) A complaint may be filed on the department's website, or filed in person or by mail, facsimile transmission, or email to the office of the department's equal rights division.
(b) A complaint filed by facsimile transmission shall conform with the requirements of s. DWD 226.26 (1). NOTE: The offices of the department's equal rights division are at the following addresses:
1. Equal Rights Division, 201 East Washington Avenue, Madison, WI 53703; PO Box 8928, Madison, WI 53708. Facsimile: 608−327−6001. Email address: ERInfo@dwd.wisconsin.gov. 2. Equal Rights Division, 819 North 6th Street, Milwaukee, WI 53203. Facsimile: 414−227−4084. Email address: ERInfo@dwd.wisconsin.gov. Access to the division's Milwaukee office is on the 7th Street side of the building. (3) Content of complaint. A complaint shall be submitted on a form provided by the department and signed by the person filing the complaint or by the person’s duly authorized representative. The signature constitutes an acknowledgment that the party or the representative has read the complaint; that to the best of that person’s knowledge, information, and belief the complaint is true and correct; and that the complaint is not being used for any improper purpose, such as to harass the party against whom the complaint is filed. Complaints filed on the department's website shall be acknowledged using the certification method required in the instructions on the website. The complaint shall contain all of the following information:
(a) The name and address of the complainant.
(b) The name and address of the respondent.
(c) A concise statement of the facts, including pertinent dates, constituting the alleged prohibited action.
(4) assistance by the department. The department shall, upon request, provide appropriate assistance in completing and filing complaints.
(5) amendment of complaint. A complaint may be amended, subject to the approval of the department, except that a complaint may not be amended less than 10 days before hearing or by a date established by the administrative law judge unless good cause is shown for the failure to amend the complaint before that time. If the complaint is amended before the issuance of an initial determination, the department shall investigate the allegations of the amended complaint. After an initial determination has been issued, amendments may be allowed by the administrative law judge only for claims which relate back to the original complaint for statute of limitation purposes. If an amendment is approved after the case has been certified to hearing, the case may be remanded to the bureau of investigations to conduct an investigation and issue an initial determination as to whether probable cause exists to believe that the respondent has violated s. 103.11, Stats., as alleged in the amended complaint or continue to hearing if both parties agree to proceed to hearing with the issues in the amended complaint. An amended complaint shall be dismissed if it does not meet the requirements of s. DWD 226.09 (1). (6) Withdrawal of complaint. A complaint may be withdrawn at any time. A request for a withdrawal shall be in writing and shall be signed by the complainant or by the complainant’s duly authorized representative. Upon the filing of a request for a withdrawal, the department shall dismiss the complaint by written order. Such dismissal shall be with prejudice unless otherwise expressly stated in the order.
DWD 226.07 Complainant’s duty to respond to correspondence from the department. The department may dismiss the complaint if the complainant fails to respond to the department within 20 days from the date of mailing of any correspondence from the department concerning the complaint, provided that correspondence was sent by certified mail, return receipt requested, to the last known address of the complainant. The department may send certified or regular mail to determine whether the complainant wishes to continue pursuing the case or for other reasons determined to be appropriate by the department. If regular mail is not returned to the department, there is a presumption that it was received by the complainant.
DWD 226.08 Notification of respondent. (1) When notice is to be sent. The department shall serve a copy of a complaint which meets the requirements of s. DWD 226.06 upon each respondent before the commencement of any investigation. (2) Content of notice. The notice shall include a copy of the complaint, which shall indicate on its face the date the complaint was filed. The notice shall direct the respondent to respond in writing to the allegations of the complaint within a time period designated by the department. The notice shall further state that, if the respondent fails to answer the complaint in writing, the department may make an initial determination as to whether a there is probable cause to believe that a prohibited act has occurred based solely on the department's investigation and the information supplied by the complainant.
DWD 226.09 Preliminary review of complaints. (1) Review of complaint. The department shall review every complaint filed to determine all of the following:
(a) Whether the complainant is protected by s. 103.11, Stats. (b) Whether the respondent is subject to s. 103.11, Stats. (c) Whether the complaint states a claim for relief under s. 103.11, Stats. (d) Whether the complaint was filed within the time period set forth in s. 103.11, Stats., if that issue is raised in writing by the respondent. (2) Preliminary determination dismissing complaint. The department shall issue a preliminary determination dismissing any complaint, or any portion of a complaint, which fails to meet the requirements of sub. (1). The department shall send the order of dismissal by US mail to the last known address of each party and to their attorneys of record. (3) Appeal of preliminary determination. (a) A complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written appeal with the department by mail, facsimile, email, or hand-delivery that satisfies all of the following: 1. The appeal is filed within 10 days after the date of the order.
2. The appeal states specifically the grounds upon which the appeal is based including evidence the complaint did, in fact, meet the requirements of sub. (1).
(b) If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties by US mail. The matter shall be referred to the bureau of hearings and mediation for review by an administrative law judge. The administrative law judge shall issue a decision to affirm, reverse, modify, or set aside the preliminary determination. The department shall serve the decision of the administrative law judge upon all parties. If the decision reverses or sets aside the preliminary determination, the complaint shall be remanded for investigation. If the decision affirms the preliminary determination, the decision may be subject to review in court if it is a final decision and order that may be appealed under s. DWD 226.25 (1). DWD 226.10 Investigations. (1) Conduct of investigation. The department shall investigate all complaints that satisfy the review under s. DWD 226.09. In conducting investigations under this chapter, the department may seek the cooperation of all persons to provide requested materials to the department ; to obtain access to premises, records, documents, individuals, and other possible sources of information; to examine, record, and copy necessary materials, and to take statements of persons reasonably necessary for the furtherance of the investigation. (2) Dismissal of complaint before completion of investigation. (a) The department may dismiss a complaint before completion of an investigation under the any of the following circumstances:
1. The complainant has failed to respond to correspondence from the department concerning the complaint within 20 days after the correspondence was sent by certified mail to the last-known address of the person filing the complaint, in accordance with the provisions of s. DWD 226.07. 2. The complainant signed a waiver and release of claims arising out of the complainant’s employment with the respondent that would preclude the department from finding that the respondent has violated s. 103.11, Stats. 3. The allegations in the complaint have been previously dismissed with prejudice by the department or by a state or federal court.
