103.10(7)(b)4.
4. If the employee requests medical leave, an explanation of the extent to which the employee is unable to perform his or her employment duties.
103.10(7)(c)
(c) The employer may require the employee 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 employee returns from family leave or medical leave, his or her employer shall immediately place the employee in an employment position as follows:
103.10(8)(a)1.
1. If the employment position which the employee held immediately before the family leave or medical leave began is vacant when the employee returns, in that position.
103.10(8)(a)2.
2. If the employment position which the employee held immediately before the family leave or medical leave began is not vacant when the employee 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 employee received family leave or medical leave, reduce or deny an employment benefit which accrued to the employee 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 employee on a medical or family leave wishes to return to work before the end of the leave as scheduled, the employer shall place the employee 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 employee to a right, employment benefit or employment position to which the employee 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 employee 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 employee 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 employee had not taken the family leave or medical leave.
103.10(9)(c)1.1. An employer may require an employee to have in escrow with the employer an amount equal to the entire premium or similar expense for 8 weeks of the employee's group health insurance coverage, if coverage is required under
par. (b).
103.10(9)(c)2.
2. An employee may pay the amount required under
subd. 1. in equal installments 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 employee any payments made under
subd. 1., plus interest, when the employee ends his or her employment with the employer.
103.10(9)(c)4.
4. If an employee 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 employee under
subd. 3. any premium or similar expense paid by the employer for the employee's group health insurance coverage while the employee was on family leave or medical leave.
103.10(9)(d)
(d) If an employee 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 employee began the period of family leave or medical leave.
103.10(10)
(10) Alternative employment. Nothing in this section prohibits an employer and an employee with a serious health condition from mutually agreeing to alternative employment for the employee while the serious health condition lasts. No period of alternative employment, with the same employer, reduces the employee'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 employee 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 employee is employed by an employer other than one described in
subd. 1.
103.10(12)(b)
(b) An employee who believes his or her employer has violated
sub. (11) (a) or
(b) may, within 30 days after the violation occurs or the employee 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 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% 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 employee, 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 employee 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 employee 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 employees are customarily posted, a notice in a form approved by the department setting forth employees' 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 employees 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 Cross-reference
Cross Reference: See also ch.
DWD 225, Wis. adm. code.
103.10 Annotation
"Disabling" in sub. (1) (g) includes incapacitation or inability to pursue an occupation because of physical or mental impairment. "Continuing treatment or supervision by a health care provider" requires direct, continuous contact with a health care provider. MPI Wi. Machining Div. v. DILHR,
159 Wis. 2d 358,
464 N.W.2d 79 (Ct. App. 1990).
103.10 Annotation
Sub. (6) (b) requires no advance notice when a leave is unplanned or unintended. MPI Wisconsin Machining Division v. DILHR,
159 Wis. 2d 358,
464 N.W.2d 79 (Ct. App. 1990).
103.10 Annotation
No formal application or detailed information need be provided to an employer to invoke FMLA's protection; an employer must have reasonable notice. Jicha v. State,
164 Wis. 2d 94,
473 N.W.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 Wis. 2d 288,
479 N.W.2d 229 (Ct. App. 1991).
103.10 Annotation
Sub. (2) (c) does not require an employee to be employed for the 52 consecutive weeks preceding the disputed action, but any consecutive 52 weeks. Butzlaff v. Wisconsin Personnel Commission,
166 Wis. 2d 1028,
480 N.W.2d 559 (Ct. App. 1992).
103.10 Annotation
"Equivalent employment" under sub. (8) (a) requires a return to the former level of job status, responsibility, and authority. Kelley Company, Inc. v. Marquardt,
172 Wis. 2d 234,
493 N.W.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 Company, Inc. v. Marquardt,
172 Wis. 2d 234,
493 N.W.2d 68 (1992).
103.10 Annotation
A complainant may recover attorney fees for successful representation in circuit court on review of a department order although the complainant could have relied on the justice department's representation of the department. An award of attorney fees is not precluded because the complainant is furnished counsel at no personal expense. Richland School District v. DILHR,
174 Wis. 2d 878,
498 N.W.2d 827 (1993).
103.10 Annotation
Sub. (5) (b) allows an employee to substitute paid leave accumulated under a collective bargaining agreement for unpaid leave under this section when the employee has not met the conditions of leave set forth in the agreement. Richland School District v. DILHR,
174 Wis. 2d 878,
498 N.W.2d 827 (1993).
103.10 Annotation
A request for medical leave need only be reasonably calculated to advise the employer that the employee is requesting medical leave and of 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 Wis. 2d 845,
512 N.W.2d 230 (Ct. App. 1994).
103.10 Annotation
Settlement of an employee's worker's compensation claim for a work related injury precluded the assertion of the employee's claim that she was entitled to leave for the injury under this section. Finell v. DILHR,
186 Wis. 2d 187,
519 N.W.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 Wis. 2d 500,
525 N.W.2d 130 (Ct. App. 1994).
103.10 Annotation
The posting requirements under sub. (14) require readily visible notice in a place where an employee would reasonably expect the notice and with which the employee is familiar through long use or acquaintance. In-Sink-Erator v. DILHR,
200 Wis. 2d 770,
547 N.W.2d 792 (Ct. App. 1996).
103.10 Annotation
The federal Labor Management Relations Act did not preempt an employee's right under sub. (5) (b) to substitute accrued paid sick leave for unpaid leave that was unambiguously granted under a collective bargaining agreement. Miller Brewing Co. v. DILHR,
210 Wis. 2d 44,
563 N.W.2d 460 (1997).
103.10 Annotation
By including the state as an employer under sub. (1) (c), the state has waived its sovereign immunity from suit under this section. Butzalaff v. DHFS,
223 Wis. 2d 673,
590 N.W.2d 9 (Ct. App. 1998).
103.10 Annotation
A party who does not prevail in administrative proceedings under sub. (12) may not file a civil action for damages under sub. (13). Butzalaff v. DHFS,
223 Wis. 2d 673,
590 N.W.2d 9 (Ct. App. 1998).
103.10 Annotation
An employee was not required to take accrued paid sick leave, but could instead use unpaid medical leave under this section. Milwaukee Transport Services, Inc. v. DWD, 2001 WI App 40,
241 Wis. 2d 336,
624 N.W.2d 895.
103.10 Annotation
Leave is "accrued" if it: 1) arises from a contract; 2) is specified and quantifiable; 3) has a "draw-down feature" that reduces the amount available as it is used; and 4) accumulates over time. Sick leave that renews annually and increases with seniority accumulates over time. That an employee must be sick several days before receiving paid sick leave does not render the benefit indefinite or incalculable. Kraft Foods, Inc. v. DWD, 2001
242 Wis. 2d 378,
625 N.W.2d 658.
103.10 Annotation
An employee whose of substitution of sick leave, rather than vacation leave, for family leave resulted in the loss of benefits under a collective bargaining agreement was not forced to choose to use vacation leave in violation of this section. Although the effect of the interaction of the bargaining agreement and this section may result in a dilemma for the employee, the contractual consequences are collateral and there is no restraint or denial of rights under this section. Heibler v. DWD, 2002 WI App 21,
250 Wis. 2d 152,
639 N.W.2d 776.
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 employee. 103.13(1)
(1)
Definition. In this section, "employee" includes former employees.
103.13(2)
(2) Open records. Every employer shall, upon the request of an employee, which the employer may require the employee to make in writing, permit the employee to inspect any personnel documents which are used or which have been used in determining that employee'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 employee 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 employee in a calendar year, unless otherwise provided in a collective bargaining agreement, to inspect the employee's personnel records as provided in this section. The employer shall provide the employee with the opportunity to inspect the employee's personnel records within 7 working days after the employee makes the request for inspection. The inspection shall take place at a location reasonably near the employee's place of employment and during normal working hours. If the inspection during normal working hours would require an employee 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 employee.
103.13(3)
(3) Personnel record inspection by representative. An employee who is involved in a current grievance against the employer may designate in writing a representative of the employee's union, collective bargaining unit or other designated representative to inspect the employee'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 employee's personnel records in the same manner as provided under
sub. (2).
103.13(4)
(4) Personnel record correction. If the employee 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 employee. If an agreement cannot be reached, the employee may submit a written statement explaining the employee's position. The employer shall attach the employee's statement to the disputed portion of the personnel record. The employee'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 employee or the employee's designated representative under
sub. (3) to inspect personnel records under this section includes the right to inspect any personal medical records concerning the employee in the employer's files. If the employer believes that disclosure of an employee's medical records would have a detrimental effect on the employee, the employer may release the medical records to the employee's physician or through a physician designated by the employee, in which case the physician may release the medical records to the employee or to the employee's immediate family.
103.13(6)
(6) Exceptions. The right of the employee or the employee'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 employee.
103.13(6)(c)
(c) Any portion of a test document, except that the employee 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 employee 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 employee which may be discovered in a judicial proceeding.
103.13(7)
(7) Copies. The right of the employee or the employee'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.
103.14
103.14
Grooming requirement; notification. Each employer shall, at the time of hiring, notify each employee about any hairstyle, facial hair or clothing requirement.
103.15
103.15
Restrictions on use of a test for HIV. 103.15(1)(a)
(a) "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.
103.15(1)(am)
(am) "HIV" means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.
103.15(1)(b)
(b) "HIV infection" means the pathological state produced by a human body in response to the presence of HIV.
103.15(1)(c)
(c) "State epidemiologist" means the individual designated by the secretary of health and family services as the individual in charge of communicable disease control for this state.
103.15(2)
(2) Notwithstanding
ss. 227.01 (13) and
227.10 (1), unless the state epidemiologist determines and the secretary of health and family services declares under
s. 250.04 (1) or
(2) (a) that individuals who have HIV infections may, through employment, provide a significant risk of transmitting HIV to other individuals, no employer or agent of an employer may directly or indirectly:
103.15(2)(a)
(a) Solicit or require as a condition of employment of any employee or prospective employee a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.
