Rules Clearinghouse No. 21-097
Final Draft
May 17, 2022
Order of the Wisconsin
Department of Workforce Development
The Wisconsin Department of Workforce Development proposes an order to create ch. DWD 226, relating to bone marrow donation leave and organ donation leave. The statement of scope for this rule, SS 101-20, was approved by the Governor on July 31, 2020, published in register No. 776A1, on August 3, 2020, and approved by the Department of Workforce Development on August 14, 2020. This rule was approved by the Governor on February 10, 2022. Analysis Prepared by the Department of Workforce Development
Statutes Interpreted
Statutory Authority
Explanation of Statutory Authority
2015 Wis. Act 345 created s. 103.11, Stats., which does all of the following: 1) requires employers with 50 or more permanent employees to allow eligible employees up to 6 weeks leave in a 12-month period for the purpose of serving as a bone marrow or organ donor; 2) imposes requirements on employers and employees regarding the leave; and 3) requires the Department of Workforce Development (department) to investigate and take other actions regarding complaints filed by employees about employer compliance with the requirements. Section 103.005 (1), Stats., provides: "The department shall adopt reasonable and proper rules and regulations relative to the exercise of its powers and authorities and proper rules to govern its proceedings and to regulate the mode and manner of all investigations and hearings." Section 227.11 (2) (a), Stats., provides: "Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute…” Related Statute or Rules
Section 103.10, Stats., does the following: 1) requires employers with 50 or more permanent employees to provide family and medical to leave to eligible employees; 2) imposes requirements on employers and employees regarding the leave; and 3) requires the department to investigate and take other actions regarding complaints filed by employees about employer compliance with the requirements. The department promulgated ch. DWD 225 to implement the requirements under s.103.10, Stats. Section 230.35 (2d), Stats., allows employees in the state civil service system to receive a leave of absence to serve as bone marrow or organ donors. 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
