AB614: Bill Text

LRB-4121/1

GMM:kmg:km

1995 - 1996 LEGISLATURE

1995 Assembly BILL 614

October 12, 1995 - Introduced by Representatives R. Young, Bell, Plache, Wirch, Plombon, L. Young, Notestein, Wood, Robson, Hanson, Baldwin and Boyle, cosponsored by Senators Chvala, Burke, Risser, Clausing, Moen and Moore. Referred to Committee on Labor and Employment.

AB614,2,2 An Act to repeal 103.10 (3) (a) 2., 103.10 (3) (a) 3., 103.10 (3) (b) (intro.), 103.10 (3) (c), 103.10 (4) (title), 103.10 (4) (b), 103.10 (12) (c), 103.10 (13) (b) 2., 103.10 (14) (b), 252.17 (3) (i) and 252.17 (4) (c); to renumber 103.10 (3) (b) 3., 103.10 (3) (d) and 103.10 (4) (c); to renumber and amend 103.10 (3) (a) 1., 103.10 (3) (b) 1., 103.10 (3) (b) 2., 103.10 (4) (a), 103.10 (7) (c) and 103.10 (14) (a); to consolidate, renumber and amend 103.10 (13) (b) (intro.) and 1.; to amend 103.10 (1) (a) (intro.), 103.10 (1) (a) 2., 103.10 (1) (c), 103.10 (1) (d), 103.10 (1) (f), 103.10 (1) (g) (intro.), 103.10 (1) (g) 2., 103.10 (2) (c), 103.10 (3) (title), 103.10 (6) (a), 103.10 (6) (b) (intro.), 103.10 (6) (b) 1., 103.10 (6) (b) 2., 103.10 (7) (a), 103.10 (7) (b) 4., 103.10 (8) (a), 103.10 (8) (b), 103.10 (9) (b), 103.10 (12) (b), 103.10 (12) (d), 103.10 (13) (a), 111.322 (2m) (a), 111.322 (2m) (b), 252.17 (4) (a) and 632.897 (6); to repeal and recreate 103.10 (8) (c), 103.10 (9) (c), 103.10 (9) (d) and 103.10 (11) (c); and to create 103.10 (4g) (title), 103.10 (7) (b) 3m., 103.10 (7) (c) 2., 103.10 (7) (d), 103.10 (7) (e), 103.10 (8) (d), 103.10 (11) (d), 103.10 (12) (e), 103.10 (12) (f), 103.10 (12) (g), 103.10 (13) (c), 103.10 (15) and 103.10 (16) of the statutes; relating to: various changes to the family and medical leave law and granting rule-making authority.

Analysis by the Legislative Reference Bureau

This bill makes various changes to the Wisconsin family and medical leave law to conform that law in certain respects to the recently enacted federal family and medical leave law.

Leave requirement

Under current law, an employer, including the state, that employes at least 50 individuals on a permanent basis must permit an employe to take 6 weeks of family leave in a 12-month period and 2 weeks of medical leave in a 12-month period. This bill requires an employer, including the state, that employs at least 50 individuals for each working day for 20 or more weeks in the current or preceding year to permit an employe to take 12 weeks of family or medical leave in a 12-month period.

Under current law, an employe may take family leave for the birth or adoptive placement of the employe's child, if the leave begins within 16 weeks after the birth or placement. This bill permits an employe to begin family leave within 12 months after the birth or placement of a child and permits family leave for a foster care placement as well.

Under current law, an employe may also take family leave to care for a child, spouse or parent, including a spouse's parent, who has a serious health condition. This bill expands the definition of "child" to include an individual for whom the employe stands in the place of a parent without having formally adopted or assumed guardianship of that individual. The bill also expands the definition of "parent" to include an individual who stood in the place of a parent of the employe or the employe's spouse when the employe or spouse was a child without having formally adopted or assumed guardianship of that individual.

Under current law, if an employe intends to take leave for the birth or placement of a child or for planned medical treatment, the employe must give notice to the employer in a manner that is reasonable and practicable. This bill requires the employe to give 30 days' notice in those situations that are foreseeable, unless the birth or placement will take place, or the medical treatment will begin, within 30 days, in which case the bill permits reasonable and practicable notice.

Certification

Under current law, an employer may require an employe to obtain a 2nd opinion, at the employer's expense, concerning the certification provided by the employe's health care provider. Also under current law, if the employe has commenced an administrative proceeding regarding the alleged denial of leave due to a serious health condition of the employe or of a child, spouse or parent, and if the original certification and 2nd opinion differ, the department of industry, labor and human relations (DILHR) may appoint a health care provider to render a 3rd opinion, with the expense of obtaining that opinion to be shared equally by the employer and employe. This bill permits the employer to require the employe, prior to any administrative proceedings, to obtain a 3rd opinion, at the employer's expense, if the original certification and 2nd opinion differ. The employer and employe must jointly designate the 3rd opinion provider.

Employment and benefits protection

Under current law, upon the return of an employe from family or medical leave, an employer must place the employe in the position the employe held immediately before that leave began, if the position is vacant, or, if the position is not vacant, in an equivalent employment position having equivalent pay, benefits, and other terms and conditions of employment. This bill permits the employer to place a returning employe either in the employe's old position or in an equivalent position without regard to whether the old position is vacant. The bill specifies that to be reinstated, the employe must have actually taken the leave for the purpose for which it was intended. The bill also permits an employer to require an employe who is on leave to report to the employer periodically on the employe's status and intention of returning to work.

Under current law, an employer must maintain group health insurance coverage for an employe on leave under the conditions that applied immediately before the leave. This bill requires an employer to maintain that coverage at the level and under the conditions that the employer would have provided coverage if the employe had continued in employment.

Under current law, an employer may require an employe to place in escrow with the employer the premium for 8 weeks of group health insurance coverage and the employer may keep from that escrow account the amount that the employer paid for that coverage if the employe does not return from leave. This bill eliminates the escrow requirement, but permits the employer to recover those premiums if the employe does not return to work for reasons other than the recurrence, onset or continuation of a serious health condition or other circumstances beyond the employe's control.

Enforcement

Under current law, an employe who believes that his or her employer has violated the family or medical leave law may file a complaint with DILHR within 30 days after the employe knew or should have known of the violation. This bill extends that time limit to 300 days after the date of the last event constituting the alleged violation.

Under current law, if DILHR finds that an employer has violated the family or medical leave law, DILHR may order the employer to take action to remedy the violation, including providing the requested leave, reinstating the employe, providing back pay accrued not more than 2 years before the complaint was filed and paying reasonable actual attorney fees. This bill eliminates the 2-year limit on back pay and includes among the remedies that DILHR may order promoting the employe and providing benefits to the employe.

Under current law, an employe or DILHR may bring a civil action in circuit court against an employer to recover damages caused by a violation of the family or medical leave law. Currently, a civil action under the family or medical leave law must be commenced within the later of 60 days after the completion of an administrative proceeding, including judicial review, for the violation or 12 months after the violation occurred or the employe or DILHR reasonably should have known that the violation occurred, or be barred. This bill permits an employe or DILHR to bring an action on behalf of the employe, or on behalf of the employe and other employes similarly situated. The bill also eliminates the 12-month period within which an action must be commenced so that an action must be commenced within 60 days after the completion of administrative proceedings. Finally, the bill specifies that, if the circuit court finds that an employer has violated the family and medical leave law, the circuit court may order the employer to take action to remedy the violation and to pay the following damages:

1. Damages equal to the amount of compensation the employe lost because of the violation or, if the employe did not lose any compensation, any actual monetary loss sustained as a direct result of the violation up to a sum equal to 12 weeks of wages or salary.

2. As liquidated damages, an amount equal to the damages described in paragraph 1., except that the court may reduce the amount of damages to the amount described in paragraph 1. if the court finds that the violation was committed in good faith and that the employer had reasonable grounds to believe that his or her act or omission was not a violation of the family or medical leave law.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB614, s. 1 Section 1. 103.10 (1) (a) (intro.) of the statutes is amended to read:

AB614,4,4 103.10 (1) (a) (intro.) "Child" means a natural, adopted, foster or treatment foster child, a stepchild or a legal ward, or an individual for whom an employe stands in the place of a parent, to whom any of the following applies:

AB614, s. 2 Section 2. 103.10 (1) (a) 2. of the statutes is amended to read:

AB614,4,8 103.10 (1) (a) 2. The individual is 18 years of age or older and cannot care for himself or herself is incapable of self-care because of a serious health condition mental or physical disability.

AB614, s. 3 Section 3. 103.10 (1) (c) of the statutes is amended to read:

AB614,5,9 103.10 (1) (c) Except as provided in sub. (14) (b), "employer" "Employer" means a person engaging in any activity, enterprise or business in this state employing at least 50 individuals on a permanent basis for each working day during each of 20 or more calendar weeks in the current or preceding year. "Employer" 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. "Employer" also includes any person who acts, directly or indirectly, in the interest of an employer with respect to an employe and any successor in interest of an employer.

AB614, s. 4 Section 4. 103.10 (1) (d) of the statutes is amended to read:

AB614,5,16 103.10 (1) (d) "Employment benefit" means an insurance, leave or retirement a benefit which that an employer provides or makes available to an employe , including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits and pensions, regardless of whether those benefits are provided by a practice or policy of the employer or through an employe benefit plan, as defined in 29 USC 1002 (3).

AB614, s. 5 Section 5. 103.10 (1) (f) of the statutes is amended to read:

AB614,5,21 103.10 (1) (f) "Parent" means a natural parent, foster parent, treatment foster parent, adoptive parent, stepparent or legal guardian of an employe or an employe's spouse or a person who stood in the place of a parent of the employe or the employe's spouse when the employe or spouse was a child.

AB614, s. 6 Section 6. 103.10 (1) (g) (intro.) of the statutes is amended to read:

AB614,5,25 103.10 (1) (g) (intro.) "Serious health condition" means a disabling physical or mental an illness, injury, impairment or physical or mental condition involving any of the following:

AB614, s. 7 Section 7. 103.10 (1) (g) 2. of the statutes is amended to read:

AB614,6,3 103.10 (1) (g) 2. Outpatient care that requires continuing Continuing treatment or supervision by a health care provider.

AB614, s. 8 Section 8. 103.10 (2) (c) of the statutes is amended to read:

AB614,6,8 103.10 (2) (c) This section only applies to an employe who has been employed for more than 52 consecutive weeks by the same employer for more than 52 consecutive weeks from whom leave under sub. (3) is requested and who worked for the that employer for at least 1,000 hours during the preceding 52-week period.

AB614, s. 9 Section 9. 103.10 (3) (title) of the statutes is amended to read:

AB614,6,10 103.10 (3) (title) Family Entitlement to leave.

AB614, s. 10 Section 10. 103.10 (3) (a) 1. of the statutes is renumbered 103.10 (3) (intro.) and amended to read:

AB614,6,15 103.10 (3) (intro.) In a 12-month period no an employe may take more than 6 12 weeks of family leave under par. (b) 1. and 2. for any one or more of the following reasons:

AB614, s. 11 Section 11. 103.10 (3) (a) 2. of the statutes is repealed.