SB385: Bill Text

SB385,7,17 103.10 (6) (b) (intro.) If an employee intends to take family leave because of the planned medical treatment or supervision of a child, spouse, domestic partner, or parent, grandparent, grandchild, or sibling or intends to take medical leave because of the planned medical treatment or supervision of the employee, the employee shall do all of the following:

SB385,19 Section 19. 103.10 (6) (b) 1. of the statutes is amended to read:

SB385,7,22 103.10 (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, domestic partner, parent, grandparent, grandchild, sibling, or employee.

SB385,20 Section 20. 103.10 (6) (c) of the statutes is created to read:

SB385,8,3 103.10 (6) (c) If the employee intends to take leave under sub. (3) (b) 4. that is foreseeable because the spouse, child, domestic partner, parent, grandparent, grandchild, or sibling of the employee is on covered active duty or has been notified of an impending call or order to covered active duty, the employee shall provide notice of that intention to the employer in a reasonable and practicable manner.

SB385,21 Section 21. 103.10 (7) (a) of the statutes is amended to read:

SB385,8,9 103.10 (7) (a) If an employee requests family leave for a reason described in sub. (3) (b) 3. or requests medical leave, the employer may require the employee to provide certification, as described in par. (b), issued by the health care provider or Christian Science practitioner of the child, spouse, domestic partner, parent, grandparent, grandchild, sibling, or employee, whichever is appropriate.

SB385,22 Section 22. 103.10 (7) (b) (intro.) of the statutes is amended to read:

SB385,8,12 103.10 (7) (b) (intro.) No employer may require certification under par. (a) stating more than the following:

SB385,23 Section 23. 103.10 (7) (b) 1. of the statutes is amended to read:

SB385,8,15 103.10 (7) (b) 1. That the child, spouse, domestic partner, parent, grandparent, grandchild, sibling, or employee has a serious health condition.

SB385,24 Section 24. 103.10 (7) (d) of the statutes is created to read:

SB385,8,23 103.10 (7) (d) If an employee requests leave under sub. (3) (b) 4., the employer may require the employee to provide certification that the spouse, child, domestic partner, parent, grandparent, grandchild, or sibling of the employee is on covered active duty or has been notified of an impending call or order to covered active duty issued at such time and in such manner as the department may prescribe by rule, and the employee shall provide a copy of that certification to the employer in a timely manner.

SB385,25 Section 25. 103.10 (12) (c) of the statutes is amended to read:

SB385,9,7 103.10 (12) (c) If 2 or more health care providers disagree about any of the information required to be certified under sub. (7) (b), the department may appoint another health care provider to examine the child, spouse, domestic partner, parent, grandparent, grandchild, sibling, or employee and render an opinion as soon as possible. The department shall promptly notify the employee and the employer of the appointment. The employer and the employee shall each pay 50% 50 percent of the cost of the examination and opinion.

SB385,26 Section 26. 103.10 (14) (a) of the statutes is renumbered 103.10 (14).

SB385,27 Section 27. 103.10 (14) (b) of the statutes is repealed.

SB385,28 Section 28. 103.11 of the statutes is created to read:

SB385,9,12 103.11 Family and medical leave insurance program. (1) Definitions. In this section:

SB385,9,15 (a) "Application year" means the 12-month period beginning on the first day of the first calendar week for which family or medical leave insurance benefits are claimed by a covered individual.

SB385,9,17 (b) "Average weekly earnings" means the average weekly earnings of a covered individual as calculated under s. 102.11 (1) (a) to (e).

SB385,9,18 (c) "Child" means a natural, adopted, or foster child, a stepchild, or a legal ward.

SB385,9,23 (d) "Covered individual" means an individual who worked for an employer for at least 680 hours in the calendar year prior to the individual's application year or a self-employed individual who elects coverage under sub. (2) (b), regardless of whether the individual is employed or unemployed at the time the individual files an application for family or medical leave insurance benefits.

SB385,9,24 (e) "Domestic partner" has the meaning given in s. 40.02 (21c) or 770.01 (1).

SB385,10,3 (f) "Employee" means an individual employed in this state by an employer, except the employer's child, spouse, domestic partner, parent, grandparent, grandchild, or sibling.

SB385,10,8 (g) "Employer" means a person engaging in any activity, enterprise, or business in this state. "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.

SB385,10,10 (h) "Family leave" means leave from employment, self-employment, or availability for employment for a reason specified in s. 103.10 (3) (b) 1., 2., 3., or 4.

SB385,10,13 (i) "Family or medical leave insurance benefits" means family or medical leave insurance benefits payable under this section from the family and medical leave insurance trust fund.

SB385,10,14 (j) "Grandchild" means the child of a child.

SB385,10,15 (k) "Grandparent" means the parent of a parent.

SB385,10,22 (L) "Medical leave" means leave from employment when a covered individual has a serious health condition that makes the individual unable to perform his or her employment duties, leave from self-employment when a covered individual has a serious health condition that makes the individual unable to perform the duties of his or her self-employment, or leave from availability for employment when a covered individual has a serious health condition that makes the individual unable to perform the duties of any suitable employment.

SB385,10,25 (m) "Parent" means a natural parent, foster parent, adoptive parent, stepparent, or legal guardian of an employee or of an employee's spouse or domestic partner.

SB385,11,1 (n) "Serious health condition" has the meaning given in s. 103.10 (1) (g).

SB385,11,3 (o) "Sibling" means a brother, sister, half brother, half sister, stepbrother, or stepsister, whether by blood, marriage, or adoption.

SB385,11,4 (p) "Spouse" means an employee's legal husband or wife.

SB385,11,7 (q) "State annual median wage" means the median hourly wage for all occupations in this state, as determined by the bureau of labor statistics of the U.S. department of labor, multiplied by 2,080.

SB385,11,9 (r) "Waiting period" means the period under sub. (4) (b) 1. for which no family or medical leave insurance benefits are payable.

SB385,11,16 (2) Eligibility for benefits. (a) A covered individual who is on family or medical leave is eligible to receive family or medical leave insurance benefits in the amount specified in sub. (3) and for the duration specified in sub. (4). No family or medical leave insurance benefits are payable for any period of family or medical leave for which a covered individual is substituting paid leave of any other type provided by his or her employer or for which a covered individual is receiving unemployment benefits under ch. 108 or worker's compensation benefits under ch. 102.

SB385,12,5 (b) Any sole proprietor, partner of a partnership, member of a limited liability company, or other self-employed individual engaged in a vocation, profession, or business in this state on a substantially full-time basis may elect to be covered under this section by filing a written notice of election with the department in a form and manner prescribed by the department by rule. An initial election under this paragraph becomes effective on the date on which the notice of election is filed, shall be for a period of not less than 3 years, and may be renewed for subsequent one-year periods by the filing of a written notice with the department that the self-employed individual intends to continue his or her coverage under this section. A self-employed individual that elects coverage under this section may withdraw that election no earlier than 3 years after the date of the initial election or at such other times as the department may prescribe by rule by providing notice of that withdrawal to the department not less than 30 days before the expiration date of the election.

SB385,12,16 (c) To receive family or medical leave insurance benefits, a covered individual shall file a claim for those benefits within such time and in such manner as the department may prescribe by rule. On receipt of a claim for family or medical leave insurance benefits, the department may request from the claimant's employer such information as may be necessary for the department to determine the claimant's eligibility for those benefits and the amount and duration of those benefits, and the employer shall provide that information to the department within such time and in such manner as the department may prescribe by rule. If the department determines that a claimant is eligible to receive family or medical leave insurance benefits, the department shall provide those benefits to the claimant as provided in subs. (3) to (5).

SB385,12,19 (3) Amount of benefits. (a) Subject to par. (b), the amount of family or medical leave insurance benefits for a week of leave for which those benefits are payable is as follows:

SB385,12,22 1. For a covered individual who earned less than 30 percent of the state annual median wage in the calendar year before the individual's application year, 95 percent of that individual's average weekly earnings.

SB385,12,25 2. For a covered individual who earned at least 30 percent, but less than 50 percent, of the state annual median wage in the calendar year before the individual's application year, 90 percent of that individual's average weekly earnings.

SB385,13,3 3. For a covered individual who earned at least 50 percent, but less than 80 percent, of the state annual median wage in the calendar year before the individual's application year, 85 percent of that individual's average weekly earnings.

SB385,13,6 4. For a covered individual who earned at least 80 percent of the state annual median wage in the calendar year before the individual's application year, 66 percent of that individual's average weekly earnings.

SB385,13,11 (b) The amount of family or medical leave insurance benefits for a fractional week of leave for which those benefits are payable is one-seventh of the covered individual's weekly benefit amount under par. (a) multiplied by the number of days of leave taken that week. Family or medical leave insurance benefits are not payable for a period of leave of less than one day in duration.

SB385,13,23 (4) Duration of benefits. (a) The maximum number of weeks for which family or medical leave insurance benefits are payable in an application year is 12 weeks. A covered individual may take family or medical leave continuously or, at the option of the covered individual, intermittently or on a reduced leave schedule, except that a covered individual may not take family or medical leave intermittently or on a reduced leave schedule for more than 24 consecutive weeks unless the leave is for a reason specified in sub. (1) (L) or s. 103.10 (3) (b) 3. and the covered individual shows that the leave is medically necessary. If a covered individual who is employed intends to take family or medical leave intermittently or on a reduced leave schedule, the covered individual shall make a reasonable effort to schedule that leave so as not to unduly disrupt the operations of his or her employer and shall provide the employer with prior notice of that leave in a reasonable and practicable manner.

SB385,14,6 (b) 1. Except as provided in subd. 2., no family or medical leave insurance benefits are payable for the first 5 calendar days in an application year for which a covered individual is eligible for those benefits. Except as provided in subd. 2., family or medical leave insurance benefits are payable beginning on the 6th calendar day in an application year for which a covered individual is eligible for those benefits. The first payment of family or medical leave insurance benefits shall be made no later than 2 weeks after a covered individual files a claim for those benefits and subsequent payments shall be made no less often than semimonthly.

SB385,14,11 2. If a covered individual uses 10 or more days of family or medical leave insurance benefits in an application year, those benefits shall also be payable with respect to the covered individual's waiting period. An employer may not require a covered individual to use paid or unpaid leave of any other type provided by the employer during the covered individual's waiting period.

SB385,14,16 (5) Coordination of benefits. (a) If family or medical leave for which benefits are payable under this section also qualifies as family or medical leave under s. 103.10 (3) (b) or (4) (a) or 29 USC 2612 (a) (1), the family or medical leave for which those benefits are payable shall run concurrently with the family or medical leave under s. 103.10 (3) (b) or (4) (a) or 29 USC 2612 (a) (1).

SB385,14,20 (b) No collective bargaining agreement or employer policy may diminish or abridge an employee's rights under this section. Any agreement purporting to waive or modify an employee's rights under this section is void as against public policy and unenforceable.

SB385,14,23 (c) Nothing in this section prohibits an employer from providing employees with rights to family or medical leave insurance benefits that are more generous to the employee than the rights provided under this section.

SB385,15,3 (6) Tax treatment of benefits. (a) State income tax. Family or medical leave insurance benefits received under this section are exempt from state income taxation under s. 71.05 (6) (b) 53.

SB385,15,5 (b) Federal income tax. With respect to the federal income taxation of family or medical leave insurance benefits, the department shall do all of the following:

SB385,15,11 1. At the time an individual files a claim for those benefits, advise the individual that those benefits are subject to federal income taxation, that requirements exist under federal law pertaining to estimated tax payments, and that the individual may elect to have federal income taxes withheld from the individual's benefit payments and may change that election not more than one time in an application year.

SB385,15,15 2. Permit the individual to elect to have federal income tax deducted and withheld from the individual's benefit payments, permit the individual to change that election not more than one time in an application year, and deduct and withhold that tax in accordance with the individual's election as provided under 26 USC 3402.

SB385,15,18 3. Upon making a deduction under subd. 2., transfer the amount deducted from the family and medical leave insurance trust fund to the federal internal revenue service.

SB385,15,21 4. In deducting and withholding federal income taxes from an individual's benefit payments, follow all procedures specified by the federal internal revenue service pertaining to the deducting and withholding of federal income tax.

SB385,16,11 (7) Family and medical leave insurance trust fund. Each employee and each self-employed individual who elects coverage under sub. (2) (b) shall contribute to the family and medical leave insurance trust fund a percentage of his or her wages from employment or income from self-employment determined by the department under this subsection. In determining that percentage, the department shall consult with the commissioner of insurance, who shall recommend a percentage that is sufficient to finance the payment of benefits under sub. (2) (c) and the administration of the family and medical leave insurance program under this section. The department shall collect those contributions from employers and self-employed individuals who elect coverage under sub. (2) (b) in the same manner as the department collects contributions to the unemployment reserve fund under ss. 108.17 and 108.18. Section 108.10 applies to issues regarding liability of employers for contributions under this subsection. Contributions received under this subsection shall be deposited in the family and medical leave insurance trust fund and credited to the appropriation account under s. 20.445 (1) (w).

SB385,16,16 (8) Denial of claims; overpayments. (a) An individual whose claim for family or medical leave insurance benefits is denied by the department may request a hearing on the denial, and the department shall process the request for a hearing in the same manner that requests for hearings on unemployment insurance claims are processed under s. 108.09.

SB385,17,2 (b) If the department pays family or medical leave insurance benefits erroneously or as a result of willful misrepresentation, the department may seek repayment of those benefits in the same manner that the department recovers erroneous payments of unemployment insurance benefits under ss. 108.095, 108.22 (8), and 108.225. The department may waive recovery of an erroneous payment of family or medical leave insurance benefits if the erroneous payment was not the fault of the person who received it and if requiring repayment would be contrary to equity and good conscience. If an individual willfully makes a false statement or representation, or willfully fails to disclose a material fact, to obtain family or medical leave insurance benefits under this section, the individual is disqualified from receiving those benefits for one year after the date of the disqualification.

SB385,17,4 (9) Prohibited acts. (a) No person may interfere with, restrain, or deny the exercise of any right provided under this section.

SB385,17,9 (b) No person may discharge or otherwise discriminate against any person for exercising any right provided under this section, opposing a practice prohibited under this section, filing a complaint or attempting to enforce any right provided under this section, or testifying or assisting in any action or proceeding to enforce any right provided under this section.

SB385,17,23 (10) Enforcement. (a) Any person who believes that his or her rights under this section have been interfered with, restrained, or denied in violation of sub. (9) (a) or that he or she has been discharged or otherwise discriminated against in violation of sub. (9) (b) may, within 30 days after the violation occurs or the person should reasonably have known that the violation occurred, whichever is later, file a complaint with the department alleging the violation, and the department shall process the complaint in the same manner as complaints filed under s. 103.10 (12) (b) are processed. If the department finds that an employer has violated sub. (9) (a) or (b), the department may order the employer to take action to remedy the violation, including providing the requested family or medical leave, reinstating an employee, providing back pay accrued not more than 2 years before the complaint was filed, and paying reasonable actual attorney fees to the complainant. Section 111.322 (2m) applies to a discharge or other discriminatory act arising in connection with any proceeding under this paragraph.

SB385,18,3 (b) After the completion of an administrative proceeding under par. (a), including judicial review, an employee or the department may bring an action in circuit court against an employer to recover damages caused by a violation of sub. (9) (a) or (b). Section 103.10 (13) (b) applies to the commencement of an action under this paragraph.

SB385,18,6 (11) Administration. The department shall administer the family and medical leave insurance program under this section. In administering that program, the department shall do all of the following:

SB385,18,8 (a) Establish procedures and forms for the filing of claims for benefits under this section.

SB385,18,12 (b) Promulgate rules to implement this section. Those rules shall maintain consistency with the regulations specified in 29 CFR Part 825 and the rules promulgated by the department to implement s. 103.10 to the extent that those regulations and rules do not conflict with this section.

SB385,18,17 (c) Use information sharing and integration technology to facilitate the exchange of information as necessary for the department to perform its duties under this section. Notwithstanding s. 19.35 (1), individual personal information maintained by the department under this section is confidential and not open to public inspection and copying and may be disclosed only as follows:

SB385,18,19 1. On the request of the individual who is the subject of the information or the individual's authorized representative, to the individual or representative.

SB385,18,22 2. With the written permission of the individual who is the subject of the information or the individual's authorized representative, to a person named in the permission.

SB385,18,24 3. To a public employee for use in the performance of the public employee's official duties.

SB385,19,3 4. Under a court order or an order of a hearing examiner that is obtained upon prior notice to the department and a showing to the court or hearing examiner that the information is relevant to a pending court or administrative action.

SB385,19,8 (d) Conduct a public outreach campaign to inform employers, employees, self-employed individuals, and other covered individuals regarding the family and medical leave insurance program under this section. Information provided under this paragraph shall be provided in English and in any other language customarily spoken by more than 20 percent of the population of this state.

SB385,19,15 (e) By September 1 of each year, submit a report to the governor, the joint committee on finance, and the appropriate standing committees of the legislature under s. 13.172 (3) on the family and medical leave insurance program under this section. The report shall include the projected and actual rates of participation in the program, the premium rates for coverage under the program, the balance in the family and medical leave insurance trust fund under s. 25.52, and a description of the department's outreach efforts under par. (d).

SB385,19,20 (12) Notice posted. Each employer shall post, on its Internet site and in one or more conspicuous places where notices to employees are customarily posted, a notice in a form approved by the department setting forth employees' rights under this section. Any employer that violates this subsection shall forfeit not more than $100 for each violation.

SB385,29 Section 29. 111.322 (2m) (a) of the statutes is amended to read:

SB385,19,25 111.322 (2m) (a) The individual files a complaint or attempts to enforce any right under s. 103.02, 103.10, 103.11, 103.13, 103.28, 103.32, 103.34, 103.455, 103.50, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55, or ss. 101.58 to 101.599 or 103.64 to 103.82.

SB385,30 Section 30. 111.322 (2m) (b) of the statutes is amended to read:

SB385,20,5 111.322 (2m) (b) The individual testifies or assists in any action or proceeding held under or to enforce any right under s. 103.02, 103.10, 103.11, 103.13, 103.28, 103.32, 103.34, 103.455, 103.50, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55, or ss. 101.58 to 101.599 or 103.64 to 103.82.

SB385,31 Section 31 . 0Nonstatutory provisions.

SB385,20,11 (1) Proposed permanent rules. The department of workforce development shall submit in proposed form the rules required under section 103.11 (11) (b) of the statutes, as created by this act, to the legislative council staff under section 227.15 (1) of the statutes no later than the first day of the 4th month beginning after the effective date of this subsection.

SB385,20,12 (2) Rule-making exceptions for permanent rules.

SB385,20,16 (a) Notwithstanding section 227.135 (2) of the statutes, the department of workforce development is not required to present the statement of the scope of the rules required under section 103.11 (11) (b) of the statutes, as created by this act, to the governor for approval.

SB385,20,20 (b) Notwithstanding section 227.185 of the statutes, the department of workforce development is not required to present the rules required under section 103.11 (11) (b) of the statutes, as created by this act, in final draft form to the governor for approval.

SB385,20,23 (c) Notwithstanding section 227.137 (2) of the statutes, the department of workforce development is not required to prepare an economic impact analysis for the rules required under section 103.11 (11) (b) of the statutes, as created by this act.

SB385,21,3 (d) Notwithstanding sections 227.14 (2g) and 227.19 (3) (e) of the statutes, the department of workforce development is not required to submit the proposed rules required under section 103.11 (11) (b) of the statutes, as created by this act, to the small business regulatory review board and is not required to prepare a final regulatory flexibility analysis for those rules.

SB385,21,17 (3) Emergency rules. Using the procedure under section 227.24 of the statutes, the department of workforce development shall promulgate the rules required under section 103.11 (11) (b) of the statutes, as created by this act, for the period before the effective date of the permanent rules promulgated under section 103.11 (11) (b) of the statutes, as created by this act, but not to exceed the period authorized under section 227.24 (1) (c) of the statutes, subject to extension under section 227.24 (2) of the statutes. Notwithstanding section 227.24 (1) (a), (2) (b), and (3) of the statutes, the department is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of public peace, health, safety, or welfare and is not required to provide a finding of an emergency for a rule promulgated under this subsection. Notwithstanding section 227.24 (1) (e) 1d. and 1g. of the statutes, the department is not required to prepare a statement of the scope of the rules promulgated under this subsection or present the rules to the governor for approval.

SB385,32 Section 32. Initial applicability.