AB614: Bill Text

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.

AB614, s. 12 Section 12. 103.10 (3) (a) 3. of the statutes is repealed.

AB614, s. 13 Section 13. 103.10 (3) (b) (intro.) of the statutes is repealed.

AB614, s. 14 Section 14. 103.10 (3) (b) 1. of the statutes is renumbered 103.10 (3) (a) and amended to read:

AB614,6,23 103.10 (3) (a) The Because of the birth of the employe's natural child, if the leave is taken to care for the child and if the leave begins within 16 weeks of 12 months after the child's birth.

AB614, s. 15 Section 15. 103.10 (3) (b) 2. of the statutes is renumbered 103.10 (3) (b) and amended to read:

AB614,7,4 103.10 (3) (b) The Because of the placement of a child with the employe for adoption or as a precondition to adoption under s. 48.90 (2), but not both, or for foster care, if the leave is taken to care for the child and if the leave begins within 16 weeks of 12 months after the child's placement.

AB614, s. 16 Section 16. 103.10 (3) (b) 3. of the statutes is renumbered 103.10 (3) (c).

AB614, s. 17 Section 17. 103.10 (3) (c) of the statutes is repealed.

AB614, s. 18 Section 18. 103.10 (3) (d) of the statutes is renumbered 103.10 (4g) (a).

AB614, s. 19 Section 19. 103.10 (4) (title) of the statutes is repealed.

AB614, s. 20 Section 20. 103.10 (4) (a) of the statutes is renumbered 103.10 (3) (d) and amended to read:

AB614,7,14 103.10 (3) (d) Subject to pars. (b) and (c), an employe who has Because of a serious health condition which that makes the employe unable to perform his or her employment duties may take medical leave for the period during which he or she is unable to perform those the duties of the employe's position.

AB614, s. 21 Section 21. 103.10 (4) (b) of the statutes is repealed.

AB614, s. 22 Section 22. 103.10 (4) (c) of the statutes is renumbered 103.10 (4g) (b).

AB614, s. 23 Section 23. 103.10 (4g) (title) of the statutes is created to read:

AB614,7,18 103.10 (4g) (title) Scheduling of leave.

AB614, s. 24 Section 24. 103.10 (6) (a) of the statutes is amended to read:

AB614,8,2 103.10 (6) (a) If an employe intends to take family leave for the reasons in under sub. (3) (b) 1. or 2. (a) or (b) that is foreseeable because of the expected birth or placement of a child, the employe shall, in a reasonable and practicable manner, give the employer advance notice of the expected birth or placement employe's intention to take that leave not less than 30 days before the date the leave is to begin, except that if the date of the birth or placement requires the leave to begin in less than 30 days, the employe shall provide notice to the employer in a reasonable and practicable manner.

AB614, s. 25 Section 25. 103.10 (6) (b) (intro.) of the statutes is amended to read:

AB614,8,8 103.10 (6) (b) (intro.) If an employe intends to take family leave under sub. (3) (c) or (d) because of the planned medical treatment or supervision of the employe or of a child, spouse or parent or intends to take medical leave because of the planned medical treatment or supervision of the employe, the employe shall do all of the following:

AB614, s. 26 Section 26. 103.10 (6) (b) 1. of the statutes is amended to read:

AB614,8,12 103.10 (6) (b) 1. Make a reasonable effort to schedule the medical treatment or supervision so that it does not unduly disrupt the employer's operations, subject to the approval of the health care provider of the child, spouse, parent or employe.

AB614, s. 27 Section 27. 103.10 (6) (b) 2. of the statutes is amended to read:

AB614,8,18 103.10 (6) (b) 2. Give the employer advance notice of the medical treatment or supervision employe's intention to take that leave not less than 30 days before the leave is to begin, except that if the date of the treatment requires the leave to begin in less than 30 days, the employe shall provide notice to the employer in a reasonable and practicable manner.

AB614, s. 28 Section 28. 103.10 (7) (a) of the statutes is amended to read:

AB614,8,25 103.10 (7) (a) If an employe requests family leave for a reason described in under sub. (3) (b) 3. or requests medical leave (c) or (d), the employer may require the employe to provide certification, as described in par. (b), issued by the health care provider or Christian Science practitioner of the child, spouse, parent or employe, whichever is appropriate, and the employe shall provide a copy of that certification to the employer in a timely manner.

AB614, s. 29 Section 29. 103.10 (7) (b) 3m. of the statutes is created to read:

AB614,9,5 103.10 (7) (b) 3m. If the employe requests leave under sub. (3) (c), a statement that the employe is needed to care for a child, spouse or parent who has a serious health condition and an estimate of the amount of time that the employe is needed to care for the child, spouse or parent.

AB614, s. 30 Section 30. 103.10 (7) (b) 4. of the statutes is amended to read:

AB614,9,9 103.10 (7) (b) 4. If the employe requests medical leave, an explanation of the extent to which under sub. (3) (d), a statement that the employe is unable to perform his or her employment the duties of the employe's position.

AB614, s. 31 Section 31. 103.10 (7) (c) of the statutes is renumbered 103.10 (7) (c) 1. and amended to read:

AB614,9,15 103.10 (7) (c) 1. The If the employer has reason to doubt the validity of a certification provided under par. (a), the employer may require the employe to obtain the opinion of a 2nd health care provider, chosen designated, or approved, and paid for by the employer, concerning any information certified under par. (b).

AB614, s. 32 Section 32. 103.10 (7) (c) 2. of the statutes is created to read:

AB614,9,18 103.10 (7) (c) 2. A health care provider designated or approved under subd. 1. may not be employed on a regular basis by the employer.

AB614, s. 33 Section 33. 103.10 (7) (d) of the statutes is created to read:

AB614,9,25 103.10 (7) (d) If a 2nd opinion obtained under par. (c) 1. differs from the opinion in the certification provided under par. (a), the employer may require the employe to obtain the opinion of a 3rd health care provider, designated, or approved, by the employer and employe jointly and paid for by the employer, concerning any information certified under par. (b). The employer and employe shall accept the 3rd opinion obtained under this paragraph as final and binding upon them.

AB614, s. 34 Section 34. 103.10 (7) (e) of the statutes is created to read:

AB614,10,3 103.10 (7) (e) The employer may require that an employe obtain recertifications after the original certification under par. (b) on a reasonable basis.

AB614, s. 35 Section 35. 103.10 (8) (a) of the statutes is amended to read:

AB614,10,8 103.10 (8) (a) Subject to par. (c) (d), when an employe returns from who takes family leave or medical leave for the purpose for which that leave is intended returns from that leave, his or her employer shall immediately place the employe in an employment position as follows:

AB614,10,11 1. If In the employment position which the employe held immediately before when the family leave or medical leave began is vacant when the employe returns, in that position.

AB614,10,16 2. If the employment position which the employe held immediately before the family leave or medical leave began is not vacant when the employe returns, in In an equivalent employment position having equivalent compensation, employment benefits, working shift, hours of employment and other terms and conditions of employment.

AB614, s. 36 Section 36. 103.10 (8) (b) of the statutes is amended to read:

AB614,10,21 103.10 (8) (b) No employer may, because an employe received family leave or medical leave, reduce or deny an employment benefit which accrued to the employe before his or her leave began or, consistent with sub. (9), accrued after his or her leave began.

AB614, s. 37 Section 37. 103.10 (8) (c) of the statutes is repealed and recreated to read:

AB614,10,25 103.10 (8) (c) An employer may require an employe who is on family or medical leave to report periodically to the employer on the employe's status and intention of returning to work.

AB614, s. 38 Section 38. 103.10 (8) (d) of the statutes is created to read:

AB614,11,5 103.10 (8) (d) Notwithstanding par. (a), an employer may adopt a uniformly applied practice or policy that requires an employe who is returning from leave under sub. (3) (d) to obtain a certification from the employe's health care provider that the employe is able to return to work.

AB614, s. 39 Section 39. 103.10 (9) (b) of the statutes is amended to read:

AB614,11,15 103.10 (9) (b) Subject to par. (c), during a period that an employe takes family leave or medical leave, his or her employer shall maintain group health insurance coverage at the level and under the conditions that applied immediately before the family leave or medical leave began. If the employe continues making any contribution required for participation in the group health insurance plan, the employer shall continue making group health insurance premium contributions as if the employe had not taken the family leave or medical the employer would have provided coverage if the employe had continued in employment continuously during that leave.

AB614, s. 40 Section 40. 103.10 (9) (c) of the statutes is repealed and recreated to read:

AB614,11,23 103.10 (9) (c) An employer may recover from an employe the premium paid by the employer to maintain group health insurance coverage for the employe during a period of unpaid family leave or medical leave if the employe fails to return from that leave after the period of leave to which the employe is entitled has expired for a reason other than the continuation, recurrence or onset of a serious health condition that entitles the employe to leave under sub. (3) (c) or (d) or other circumstances beyond the control of the employe.

AB614, s. 41 Section 41. 103.10 (9) (d) of the statutes is repealed and recreated to read: