AB166: Bill Text

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.

AB166, s. 36 Section 36. 103.10 (7) (a) of the statutes is amended to read:

AB166,12,6 103.10 (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.

AB166, s. 37 Section 37. 103.10 (7) (b) 4. of the statutes is amended to read:

AB166,12,10 103.10 (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 duties the functions of the employe's position.

AB166, s. 38 Section 38. 103.10 (7) (c) of the statutes is renumbered 103.10 (7) (c) 1. and amended to read:

AB166,12,16 103.10 (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).

AB166, s. 39 Section 39. 103.10 (7) (c) 2. of the statutes is created to read:

AB166,12,19 103.10 (7) (c) 2. A health care provider designated or approved under subd. 1. may not be employed on a regular basis by the employer.

AB166, s. 40 Section 40. 103.10 (7) (d) of the statutes is created to read:

AB166,13,2 103.10 (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.

AB166, s. 41 Section 41. 103.10 (7) (e) of the statutes is created to read:

AB166,13,5 103.10 (7) (e) The employer may require that an employe obtain recertifications after the original certification under par. (b) on a reasonable basis.

AB166, s. 42 Section 42. 103.10 (8) (a) of the statutes is amended to read: