103.10(4)(a)(a) Subject to
pars. (b) and
(c), an employe who has a serious health condition which 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.
103.10(4)(b)
(b) No employe may take more than 2 weeks of medical leave during a 12-month period.
103.10(4)(c)
(c) An employe may schedule medical leave as medically necessary.
103.10(5)
(5) Payment for and restrictions upon leave. 103.10(5)(a)(a) This section does not entitle an employe to receive wages or salary while taking family leave or medical leave.
103.10(5)(b)
(b) An employe may substitute, for portions of family leave or medical leave, paid or unpaid leave of any other type provided by the employer.
103.10(6)(a)(a) If an employe intends to take family leave for the reasons in
sub. (3) (b) 1. or
2., the employe shall, in a reasonable and practicable manner, give the employer advance notice of the expected birth or placement.
103.10(6)(b)
(b) If an employe intends to take family leave because of the planned medical treatment or supervision 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:
103.10(6)(b)1.
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.
103.10(6)(b)2.
2. Give the employer advance notice of the medical treatment or supervision in a reasonable and practicable manner.
103.10(7)(a)(a) If an employe requests family leave for a reason described in
sub. (3) (b) 3. or requests medical leave, 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.
103.10(7)(b)
(b) No employer may require certification stating more than the following:
103.10(7)(b)1.
1. That the child, spouse, parent or employe has a serious health condition.
103.10(7)(b)2.
2. The date the serious health condition commenced and its probable duration.
103.10(7)(b)3.
3. Within the knowledge of the health care provider or Christian Science practitioner, the medical facts regarding the serious health condition.
103.10(7)(b)4.
4. If the employe requests medical leave, an explanation of the extent to which the employe is unable to perform his or her employment duties.
103.10(7)(c)
(c) The employer may require the employe to obtain the opinion of a 2nd health care provider, chosen and paid for by the employer, concerning any information certified under
par. (b).
103.10(8)
(8) Position upon return from leave. 103.10(8)(a)(a) Subject to
par. (c), when an employe returns from family leave or medical leave, his or her employer shall immediately place the employe in an employment position as follows:
103.10(8)(a)1.
1. If the employment position which the employe held immediately before the family leave or medical leave began is vacant when the employe returns, in that position.
103.10(8)(a)2.
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 an equivalent employment position having equivalent compensation, benefits, working shift, hours of employment and other terms and conditions of employment.
103.10(8)(b)
(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.
103.10(8)(c)
(c) Notwithstanding
par. (a), if an employe on a medical or family leave wishes to return to work before the end of the leave as scheduled, the employer shall place the employe in an employment position of the type described in
par. (a) 1. or
2. within a reasonable time not exceeding the duration of the leave as scheduled.
103.10(9)
(9) Employment right, benefit or position. 103.10(9)(a)(a) Except as provided in
par. (b), nothing in this section entitles a returning employe to a right, employment benefit or employment position to which the employe would not have been entitled had he or she not taken family leave or medical leave or to the accrual of any seniority or employment benefit during a period of family leave or medical leave.
103.10(9)(b)
(b) Subject to
par. (c), during a period an employe takes family leave or medical leave, his or her employer shall maintain group health insurance coverage 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 leave.
103.10(9)(c)1.1. An employer may require an employe to have in escrow with the employer an amount equal to the entire premium or similar expense for 8 weeks of the employe's group health insurance coverage, if coverage is required under
par. (b).
103.10(9)(c)2.
2. An employe may pay the amount required under
subd. 1. in equal instalments at regular intervals over at least a 12-month period. An employer shall deposit the payments at a financial institution in an interest-bearing account.
103.10(9)(c)3.
3. Subject to
subd. 4., an employer shall return to the employe any payments made under
subd. 1., plus interest, when the employe ends his or her employment with the employer.
103.10(9)(c)4.
4. If an employe ends his or her employment with an employer during or within 30 days after a period of family leave or medical leave, the employer may deduct from the amount returned to the employe under
subd. 3. any premium or similar expense paid by the employer for the employe's group health insurance coverage while the employe was on family leave or medical leave.
103.10(9)(d)
(d) If an employe ends his or her employment with an employer during or at the end of a period of family leave or medical leave, the time period for conversion to individual coverage under
s. 632.897 (6) shall be calculated as beginning on the day that the employe began the period of family leave or medical leave.
103.10(10)
(10) Alternative employment. Nothing in this section prohibits an employer and an employe with a serious health condition from mutually agreeing to alternative employment for the employe while the serious health condition lasts. No period of alternative employment, with the same employer, reduces the employe's right to family leave or medical leave.
103.10(11)(a)(a) No person may interfere with, restrain or deny the exercise of any right provided under this section.
103.10(11)(b)
(b) No person may discharge or in any other manner discriminate against any individual for opposing a practice prohibited under this section.
103.10(11)(c)
(c) Section 111.322 (2m) applies to discharge or other discriminatory acts arising in connection with any proceeding under this section.
103.10(12)(a)1.
1. The personnel commission, if the employe is employed by the state or 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.
103.10(12)(a)2.
2. The department of workforce development, if the employe is employed by an employer other than one described in
subd. 1.
103.10(12)(b)
(b) An employe who believes his or her employer has violated
sub. (11) (a) or
(b) may, within 30 days after the violation occurs or the employe should reasonably have known that the violation occurred, whichever is later, file a complaint with the department alleging the violation. Except as provided in
s. 230.45 (1m), the department shall investigate the complaint and shall attempt to resolve the complaint by conference, conciliation or persuasion. If the complaint is not resolved and the department finds probable cause to believe a violation has occurred, the department shall proceed with notice and a hearing on the complaint as provided in
ch. 227. The hearing shall be held within 60 days after the department receives the complaint.
103.10(12)(c)
(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, parent or employe and render an opinion as soon as possible. The department shall promptly notify the employe and the employer of the appointment. The employer and the employe shall each pay 50% of the cost of the examination and opinion.
103.10(12)(d)
(d) The department shall issue its decision and order within 30 days after the hearing. If the department finds that an employer violated
sub. (11) (a) or
(b), it may order the employer to take action to remedy the violation, including providing requested family leave or medical leave, reinstating an employe, providing back pay accrued not more than 2 years before the complaint was filed and paying reasonable actual attorney fees to the complainant.
103.10(13)(a)(a) An employe or the department may bring an action in circuit court against an employer to recover damages caused by a violation of
sub. (11) after the completion of an administrative proceeding, including judicial review, concerning the same violation.
103.10(13)(b)
(b) An action under
par. (a) shall be commenced within the later of the following periods, or be barred:
103.10(13)(b)1.
1. Within 60 days from the completion of an administrative proceeding, including judicial review, concerning the same violation.
103.10(13)(b)2.
2. Twelve months after the violation occurred, or the department or employe should reasonably have known that the violation occurred.
103.10(14)(a)(a) Each employer shall post, in one or more conspicuous places where notices to employes are customarily posted, a notice in a form approved by the department setting forth employes' rights under this section. Any employer who violates this subsection shall forfeit not more than $100 for each offense.
103.10(14)(b)
(b) Any person employing at least 25 individuals shall post, in one or more conspicuous places where notices to employes are customarily posted, a notice describing the person's policy with respect to leave for the reasons described in
subs. (3) (b) and
(4) (a).
103.10 Annotation
Term "disabling" in (1) (g) includes incapacitation or inability to pursue occupation because of physical or mental impairment; "continuing treatment or supervision by a health care provider" requires direct, continuous contact with health care provider. MPI Wi. Machining Div. v. DILHR, 159 W (2d) 358, 464 NW (2d) 79 (Ct. App. 1990).
103.10 Annotation
Sub. (6) (b) requires no advance notice when leave is unplanned or unintended. MPI Wi. Machining Div. v. DILHR, 159 W (2d) 358, 464 NW (2d) 79 (Ct. App. 1990).
103.10 Annotation
No formal application or detailed information need be provided employer to invoke FMLA's protection; employer must have reasonable notice. Jicha v. State, 164 W (2d) 94, 473 NW (2d) 578 (Ct. App. 1991).
103.10 Annotation
As a symptom of pregnancy, morning sickness may be considered a "serious health condition". Haas v. DILHR, 166 W (2d) 288, 479 NW (2d) 229 (Ct. App. 1991).
103.10 Annotation
Sub. (2) (c) does not require an employe to be employed for the fifty-two consecutive weeks preceding the disputed action, but any consecutive fifty-two weeks. Butzlaff v. Wisconsin Personnel Commission, 166 W (2d) 1028, 480 NW (2d) 559 (Ct. App. 1992).
103.10 Annotation
"Equivalent employment" under (8) (a) requires a return to former level of job status, responsibility and authority. Kelley Co., Inc. v. Marquardt, 172 W (2d) 234, 493 NW (2d) 68 (1992).
103.10 Annotation
The only prerequisite for reinstatement and backpay is that the employer violated this section; backpay should be reduced by interim earnings and amounts earnable. Kelley Co. v. Marquardt, 172 W (2d) 234, 493 NW (2d) 68 (1992).
103.10 Annotation
Complainant may recover attorney's fees for successful representation in circuit court on review of department's order although he could have relied on Department of Justice representation of Department; award of attorney's fees is not precluded where complainant is furnished counsel at no personal expense. Richland School Dist. v. DILHR, 174 W (2d) 878, 498 NW (2d) 827 (1993).
103.10 Annotation
Sub. (5) (b) allows an employe to substitute paid leave accumulated under a collective bargaining agreement for unpaid leave under this section when the employe has not met the conditions of leave set forth in the agreement. Richland School Dist. v. DILHR, 174 W (2d) 878, 498 NW (2d) 827 (1993).
103.10 Annotation
A request for medical leave need only be reasonably calculated to advise the employer that the employe is requesting medical leave and the reason for the request. Upon receipt of the request the employer may approve. disapprove or request more information under the certification process under sub. (7). Sieger v. Wisconsin Personnel Commission, 181 W (2d) 845, 512 NW (2d) 230 (Ct. App. 1994).
103.10 Annotation
Settlement of an employe's worker's compensation claim for a work related injury precluded the assertion of the employe's claim that she was entitled to leave for the injury under this section. Finell v. DILHR, 186 W(2d) 187, 519 NW (2d) 731 (Ct. App. 1994).
103.10 Annotation
Each increment of leave under sub. (3) (b) 1. must begin within 16 weeks of the child's birth. Schwedt v. DILHR, 188 W (2d) 500, 525 NW (2d) 130 (Ct. App. 1994).
103.10 Annotation
The posting requirements under sub. (14) require readily visible notice in a place where an employe would reasonably expect the notice and with which the employe is familiar through long use or acquaintance. In-Sink-Erator v. DILHR, 200 W (2d) 770, 547 NW (2d) 792 (Ct. App. 1996).
103.10 Annotation
The federal Labor Management Relations Act did not preempt an employe's right under sub. (5) (b) to substitute accrued paid sick leave for unpaid leave where the sick leave was unambiguously granted under a collective bargaining agreement. Miller Brewing Co. v. DILHR, 210 W (2d) 44, 563 NW (2d) 460 (1997).
103.10 Annotation
Quagmire or Quantum Leap? The Wisconsin Family and Medical Leave Act. Goeldner and Nelson-Glode. Wis. Law. April 1992.
103.10 Annotation
Family & Medical Leave Acts. Sholl and Krupp-Gordon. Wis. Law. Aug. 1993.
103.13
103.13
Records open to employe. 103.13(1)
(1)
Definition. In this section, "employe" includes former employes.
103.13(2)
(2) Open records. Every employer shall, upon the request of an employe, which the employer may require the employe to make in writing, permit the employe to inspect any personnel documents which are used or which have been used in determining that employe's qualifications for employment, promotion, transfer, additional compensation, termination or other disciplinary action, and medical records, except as provided in
subs. (5) and
(6). An employe may request all or any part of his or her records, except as provided in
sub. (6). The employer shall grant at least 2 requests by an employe in a calendar year, unless otherwise provided in a collective bargaining agreement, to inspect the employe's personnel records as provided in this section. The employer shall provide the employe with the opportunity to inspect the employe's personnel records within 7 working days after the employe makes the request for inspection. The inspection shall take place at a location reasonably near the employe's place of employment and during normal working hours. If the inspection during normal working hours would require an employe to take time off from work with that employer, the employer may provide some other reasonable time for the inspection. In any case, the employer may allow the inspection to take place at a time other than working hours or at a place other than where the records are maintained if that time or place would be more convenient for the employe.
103.13(3)
(3) Personnel record inspection by representative. An employe who is involved in a current grievance against the employer may designate in writing a representative of the employe's union, collective bargaining unit or other designated representative to inspect the employe's personnel records which may have a bearing on the resolution of the grievance, except as provided in
sub. (6). The employer shall allow such a designated representative to inspect that employe's personnel records in the same manner as provided under
sub. (2).
103.13(4)
(4) Personnel record correction. If the employe disagrees with any information contained in the personnel records, a removal or correction of that information may be mutually agreed upon by the employer and the employe. If an agreement cannot be reached, the employe may submit a written statement explaining the employe's position. The employer shall attach the employe's statement to the disputed portion of the personnel record. The employe's statement shall be included whenever that disputed portion of the personnel record is released to a 3rd party as long as the disputed record is a part of the file.
103.13(5)
(5) Medical records inspection. The right of the employe or the employe's designated representative under
sub. (3) to inspect personnel records under this section includes the right to inspect any personal medical records concerning the employe in the employer's files. If the employer believes that disclosure of an employe's medical records would have a detrimental effect on the employe, the employer may release the medical records to the employe's physician or through a physician designated by the employe, in which case the physician may release the medical records to the employe or to the employe's immediate family.
103.13(6)
(6) Exceptions. The right of the employe or the employe's designated representative under
sub. (3) to inspect his or her personnel records does not apply to:
103.13(6)(a)
(a) Records relating to the investigation of possible criminal offenses committed by that employe.
103.13(6)(c)
(c) Any portion of a test document, except that the employe may see a cumulative total test score for either a section of the test document or for the entire test document.
103.13(6)(d)
(d) Materials used by the employer for staff management planning, including judgments or recommendations concerning future salary increases and other wage treatments, management bonus plans, promotions and job assignments or other comments or ratings used for the employer's planning purposes.
103.13(6)(e)
(e) Information of a personal nature about a person other than the employe if disclosure of the information would constitute a clearly unwarranted invasion of the other person's privacy.
103.13(6)(f)
(f) An employer who does not maintain any personnel records.
103.13(6)(g)
(g) Records relevant to any other pending claim between the employer and the employe which may be discovered in a judicial proceeding.
103.13(7)
(7) Copies. The right of the employe or the employe's representative to inspect records includes the right to copy or receive a copy of records. The employer may charge a reasonable fee for providing copies of records, which may not exceed the actual cost of reproduction.
103.13(7m)
(7m) Employment discrimination. Section 111.322 (2m) applies to discharge and other discriminatory acts in connection with any proceeding under this section.
103.13(8)
(8) Penalty. Any employer who violates this section may be fined not less than $10 nor more than $100 for each violation. Each day of refusal or failure to comply with a duty under this section is a separate violation.
