103.10
103.10
Family or medical leave. 103.10(1)(a)
(a) "Child" means a natural, adopted, foster or treatment foster child, a stepchild or a legal ward to whom any of the following applies:
103.10(1)(a)2.
2. The individual is 18 years of age or older and cannot care for himself or herself because of a serious health condition.
103.10(1)(am)
(am) "Christian Science practitioner" means a Christian Science practitioner residing in this state who is listed as a practitioner in the Christian Science journal.
103.10(1)(b)
(b) "Employee" means an individual employed in this state by an employer, except the employer's parent, spouse or child.
103.10(1)(c)
(c) Except as provided in
sub. (14) (b), "employer" means a person engaging in any activity, enterprise or business in this state employing at least 50 individuals on a permanent basis. "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.
103.10(1)(d)
(d) "Employment benefit" means an insurance, leave or retirement benefit which an employer makes available to an employee.
103.10(1)(f)
(f) "Parent" means a natural parent, foster parent, treatment foster parent, adoptive parent, stepparent or legal guardian of an employee or an employee's spouse.
103.10(1)(g)
(g) "Serious health condition" means a disabling physical or mental illness, injury, impairment or condition involving any of the following:
103.10(1)(g)2.
2. Outpatient care that requires continuing treatment or supervision by a health care provider.
103.10(1)(h)
(h) "Spouse" means an employee's legal husband or wife.
103.10(2)(a)(a) Nothing in this section prohibits an employer from providing employees with rights to family leave or medical leave which are more generous to the employee than the rights provided under this section.
103.10(2)(b)
(b) This section does not limit or diminish an employee's rights or benefits under
ch. 102.
103.10(2)(c)
(c) This section only applies to an employee who has been employed by the same employer for more than 52 consecutive weeks and who worked for the employer for at least 1,000 hours during the preceding 52-week period.
103.10(3)(a)1.1. In a 12-month period no employee may take more than 6 weeks of family leave under
par. (b) 1. and
2.
103.10(3)(a)2.
2. In a 12-month period no employee may take more than 2 weeks of family leave for the reasons specified under
par. (b) 3.
103.10(3)(a)3.
3. In a 12-month period no employee may take more than 8 weeks of family leave for any combination of reasons specified under
par. (b).
103.10(3)(b)
(b) An employee may take family leave for any of the following reasons:
103.10(3)(b)1.
1. The birth of the employee's natural child, if the leave begins within 16 weeks of the child's birth.
103.10(3)(b)2.
2. The placement of a child with the employee for adoption or as a precondition to adoption under
s. 48.90 (2), but not both, if the leave begins within 16 weeks of the child's placement.
103.10(3)(b)3.
3. To care for the employee's child, spouse or parent, if the child, spouse or parent has a serious health condition.
103.10(3)(c)
(c) Except as provided in
par. (d), an employee shall schedule family leave after reasonably considering the needs of his or her employer.
103.10(3)(d)
(d) An employee may take family leave as partial absence from employment. An employee who does so shall schedule all partial absence so it does not unduly disrupt the employer's operations.
103.10(4)(a)(a) Subject to
pars. (b) and
(c), an employee who has a serious health condition which makes the employee 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 employee may take more than 2 weeks of medical leave during a 12-month period.
103.10(4)(c)
(c) An employee 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 employee to receive wages or salary while taking family leave or medical leave.
103.10(5)(b)
(b) An employee 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 employee intends to take family leave for the reasons in
sub. (3) (b) 1. or
2., the employee 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 employee 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 employee, the employee 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 employee.
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 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, parent or employee, 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 employee 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 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)(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 Wisconsin Machining Division 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).
