AB166: Bill Text

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 federal family and medical leave law. The bill also allows an employe to take school conference and activities leave.

Family or medical leave

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 35 individuals for each working day during each of 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 or medical leave only if the employe has been employed by the same employer for more than 52 consecutive weeks. Under the bill, an employe may take family or medical leave only if the employe has been employed for more than 52 consecutive weeks by the employer from whom the leave is requested.

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 before or 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, an employe may take medical leave if the employe has a serious health condition that makes the employe unable to perform his or her employment duties. Under the bill, an employe may take medical leave if the employe has a serious health condition that makes the employe unable to perform the functions of his or her employment.

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.

School conference and activities leave

The bill allows any employe of an employer employing at least 35 individuals to take no more than 16 hours of school conference and activities leave in a 12-month period. School conference and activities leave may be taken to attend school conferences or classroom activities relating to the employe's child that cannot be scheduled during nonwork hours. In addition, if the employe's child is in day care or is attending preschool or prekindergarten, the employe may also take school conference and activities leave to observe and monitor the services or programming received by the child, if that observation and monitoring cannot be scheduled during nonwork hours. An employe is not entitled to receive wages or salary while taking school activities leave, but may substitute, for portions of school conference and activities leave, other types of paid or unpaid leave provided by the employer, except that an employe may not substitute paid leave for school conference and activities leave for attending a school conference or activity for less than one hour. An employe who intends to take leave to attend a school conference or activity must give the employer advance notice of the leave and make a reasonable effort to schedule the leave so that it does not unduly disrupt the operations of the employer. For purposes of school conference and activities leave, "child" includes a person 18 years of age or over who is a biological, adopted or foster child, a stepchild or a legal ward of an employe or who is a person for whom the employe stands in the place of a parent; and "school" means a day care center licensed by the department of health and family services, a day care provider certified for funding by a county department of human services or social services, a day care program established or contracted for by a school board, a public, parochial or private preschool or prekindergarten or a public, parochial or private school that provides an educational program for one or more grades between kindergarten and 12.

Certification of health condition

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 job development (DILJD) 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.

Also, under the bill, the employer may require an employe to obtain recertification of the original certification on a regular basis, to report periodically on the employe's status and intention of returning to work and to obtain certification that the employe is able to return to work. If the employe is not able to return to work as planned, the bill permits the employer to require the employe to provide certification that the employe's serious health condition prevented the employe from performing the functions of his or her position on the day on which the leave expired.

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 that 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 an employe who is returning from family, medical or school conference and activities leave either in the employe's old position or in an equivalent position without regard to whether the old position is vacant.

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 for an employe who is on family, medical or school conference and activities leave 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 from family, medical or school conference and activities leave 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 DILJD 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 of the family, medical or school conference and activities leave law.

Under current law, if DILJD finds that an employer has violated the family or medical leave law, DILJD 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 for a violation of the family, medical or school conference and activities leave law and includes among the remedies that DILJD may order for such a violation the promotion of the employe and the provision of benefits to the employe.

Under current law, an employe or DILJD 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 is barred unless 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 DILJD reasonably should have known that the violation occurred. This bill permits an employe or DILJD to bring an action for a violation of the family, medical or school conference and activities leave law 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, medical or school conference and activities 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 that 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, medical or school conference and activities 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:

AB166, s. 1 Section 1. 103.10 (title) of the statutes is amended to read:

AB166,5,3 103.10 (title) Family or, medical and school conference and activities leave.

AB166, s. 2 Section 2. 103.10 (1) (a) (intro.) of the statutes is renumbered 103.10 (1) (a) and amended to read:

AB166,6,6 103.10 (1) (a) "Child" means a natural biological, adopted, foster or treatment foster child, a stepchild or a legal ward to whom any of the following applies: of an employe or a person for whom an employe stands in the place of a parent and includes a person 18 years of age or over who is a biological, adopted, foster or treatment foster child, a stepchild or a legal ward of an employe or who is a person for whom an employe stands in the place of a parent.

AB166, s. 3 Section 3. 103.10 (1) (a) 1. and 2. of the statutes are repealed.

AB166, s. 4 Section 4. 103.10 (1) (c) of the statutes is amended to read:

AB166,6,18 103.10 (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 35 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, its political subdivisions and any office, department, independent agency, authority, institution, association, society or other body in state or local 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.

AB166, s. 5 Section 5. 103.10 (1) (d) of the statutes is amended to read:

AB166,6,25 103.10 (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).

AB166, s. 6 Section 6. 103.10 (1) (f) of the statutes is amended to read:

AB166,7,5 103.10 (1) (f) "Parent" means a natural biological 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.

AB166, s. 7 Section 7. 103.10 (1) (fr) of the statutes is created to read:

AB166,7,12 103.10 (1) (fr) "School" means a child care provider as defined in s. 49.001 (1), a public, parochial or private preschool or prekindergarten or a public, parochial or private school which provides an educational program for one or more grades between kindergarten and 12 and which is commonly known as a kindergarten, elementary school, middle school, junior high school, senior high school or high school.

AB166, s. 8 Section 8. 103.10 (1) (g) (intro.) of the statutes is amended to read:

AB166,7,16 103.10 (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:

AB166, s. 9 Section 9. 103.10 (1) (g) 2. of the statutes is amended to read:

AB166,7,19 103.10 (1) (g) 2. Outpatient care that requires continuing Continuing treatment or supervision by a health care provider.

AB166, s. 10 Section 10. 103.10 (2) (a) of the statutes is amended to read:

AB166,7,24 103.10 (2) (a) Nothing in this section prohibits an employer from providing employes with rights to family leave or, medical leave which or school conference and activities leave that are more generous to the employe than the rights provided under this section.

AB166, s. 11 Section 11. 103.10 (2) (c) of the statutes is amended to read:

AB166,8,6 103.10 (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, except that for purposes of school conference and activities leave under sub. (4m) this section applies to any employe of an employer.

AB166, s. 12 Section 12. 103.10 (3) (title) of the statutes is amended to read:

AB166,8,8 103.10 (3) (title) Family or medical leave.

AB166, s. 13 Section 13. 103.10 (3) (a) 1. of the statutes is renumbered 103.10 (3) (intro.) and amended to read:

AB166,8,13 103.10 (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:

AB166, s. 14 Section 14. 103.10 (3) (a) 2. of the statutes is repealed.

AB166, s. 15 Section 15. 103.10 (3) (a) 3. of the statutes is repealed.

AB166, s. 16 Section 16. 103.10 (3) (b) (intro.) of the statutes is repealed.

AB166, s. 17 Section 17. 103.10 (3) (b) 1. of the statutes is renumbered 103.10 (3) (a) and amended to read:

AB166,8,20 103.10 (3) (a) The birth of the employe's natural biological child, if the leave begins within 16 weeks of 12 months before or after the child's birth.

AB166, s. 18 Section 18. 103.10 (3) (b) 2. of the statutes is renumbered 103.10 (3) (b) and amended to read:

AB166,9,2 103.10 (3) (b) The placement of a child under 18 years of age 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 begins within 16 weeks of 12 months before or after the child's placement.

AB166, s. 19 Section 19. 103.10 (3) (b) 3. of the statutes is renumbered 103.10 (3) (c).

AB166, s. 20 Section 20. 103.10 (3) (c) of the statutes is repealed.

AB166, s. 21 Section 21. 103.10 (3) (d) of the statutes is renumbered 103.10 (4g) (a).

AB166, s. 22 Section 22. 103.10 (4) (title) of the statutes is repealed.

AB166, s. 23 Section 23. 103.10 (4) (a) of the statutes is renumbered 103.10 (3) (d) and amended to read:

AB166,9,12 103.10 (3) (d) Subject to pars. (b) and (c), an employe who has a 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 duties the functions of the employe's position.

AB166, s. 24 Section 24. 103.10 (4) (b) of the statutes is repealed.

AB166, s. 25 Section 25. 103.10 (4) (c) of the statutes is renumbered 103.10 (4g) (b).

AB166, s. 26 Section 26. 103.10 (4g) (title) of the statutes is created to read:

AB166,9,16 103.10 (4g) (title) Scheduling of family or medical leave.

AB166, s. 27 Section 27. 103.10 (4m) of the statutes is created to read:

AB166,9,25 103.10 (4m) School conference and activities leave. Subject to sub. (6) (c), an employe may take no more than 16 hours of school conference and activities leave in a 12-month period for the purpose of attending school conferences or classroom activities relating to the employe's child that cannot be scheduled during nonwork hours. If the employe's child is receiving care from a child care provider, as defined in s. 49.001 (1), or is attending a public, private or parochial preschool or prekindergarten, the employe may also use the school conference and activities leave provided under this subsection to observe and monitor the services or programming received by the child, if that observation and monitoring cannot be scheduled during nonwork hours.

AB166, s. 28 Section 28. 103.10 (5) (a) of the statutes is amended to read:

AB166,10,5 103.10 (5) (a) This section does not entitle an employe to receive wages or salary while taking family leave or, medical leave or school conference and activities leave.

AB166, s. 29 Section 29. 103.10 (5) (b) of the statutes is renumbered 103.10 (5) (b) 1. and amended to read:

AB166,10,10 103.10 (5) (b) 1. An Subject to subd. 2., an employe may substitute, for portions of family leave or, medical leave or school conference and activities leave, paid or unpaid leave of any other type provided by the employer.

AB166, s. 30 Section 30. 103.10 (5) (b) 2. of the statutes is created to read:

AB166,10,14 103.10 (5) (b) 2. Notwithstanding subd. 1., an employe may not substitute paid leave for school conference and activities leave for attending a school conference or activity for less than one hour.

AB166, s. 31 Section 31. 103.10 (6) (a) of the statutes is amended to read:

AB166,10,23 103.10 (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.

AB166, s. 32 Section 32. 103.10 (6) (b) (intro.) of the statutes is amended to read:

AB166,11,5 103.10 (6) (b) (intro.) If an employe intends to take family leave because of under sub. (3) (c) or (d) that is foreseeable based on 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:

AB166, s. 33 Section 33. 103.10 (6) (b) 1. of the statutes is amended to read:

AB166,11,9 103.10 (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.

AB166, s. 34 Section 34. 103.10 (6) (b) 2. of the statutes is amended to read:

AB166,11,15 103.10 (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.

AB166, s. 35 Section 35. 103.10 (6) (c) of the statutes is created to read:

AB166,11,19 103.10 (6) (c) If an employe intends to take leave under sub. (4m) for the purpose of attending a school conference or activity, the employe shall do all of the following:

AB166,11,21 1. Make a reasonable effort to schedule the leave so that it does not unduly disrupt the employer's operations.

AB166,11,23 2. Give the employer advance notice of the leave in a reasonable and practicable manner.