21.75(21)
(21) Power of attorney extension for missing service member. 21.75(21)(a)(a) A power of attorney that was duly executed by a service member that is reported missing to the department and that designates the service member's spouse, parent or named relative as his or her attorney-in-fact for specified, or all, purposes, and that expires after the service member is reported missing, is extended for the period that the service member is missing.
21.75(21)(b)
(b) No power of attorney executed after December 14, 2001, by a service member in active state service may be extended under
par. (a) if the document creating the power of attorney clearly indicates that the power granted expires on the date specified even if the service member, after the date of execution of the document, is reported missing to the department.
21.75(22)
(22) Professional liability protection. 21.75(22)(a)1.1. If a service member who is called into active state service has coverage under a professional liability insurance policy that does not cover claims filed with respect to the service member during the period of active state service unless the premiums are paid for the coverage for that period, the insurer that provides the coverage shall suspend the service member's coverage under the policy upon receipt of a written request from the service member to do so. The insurer may not require that premiums be paid for the suspended coverage. The insurer shall refund any premium amount already paid for coverage of the service member for the period after the coverage is suspended or shall, at the option of the service member, apply such amount to payment of any premium that becomes due upon reinstatement of the coverage.
21.75(22)(a)2.
2. Subdivision 1. does not require the suspension of coverage for any other person who has coverage under the policy and who is not a service member called into active state service or relieve any person of the obligation to pay premiums for coverage that is not required to be suspended under
subd. 1.
21.75(22)(b)1.1. Subject to
subd. 2., an insurer that suspends coverage under
par. (a) is not liable with respect to any claim that is based on the professional conduct, including the failure to take an action in a professional capacity, of the service member that occurs while the service member's professional liability coverage is suspended under this subsection.
21.75(22)(b)2.
2. For purposes of
subd. 1., a claim that is based on the failure of a professional to make adequate provision for the care of patients during the professional's period of active state service shall be considered to be based on an action or the failure to take action before the beginning of the period during which coverage is suspended under this subsection, unless professional services were provided after the date on which the suspension of coverage began.
21.75(22)(c)1.1. If a service member whose professional liability insurance coverage is suspended under
par. (a) transmits to the insurer, within 30 days after the date on which the service member is released from active state service, a written request for reinstatement of his or her professional liability insurance coverage, the insurer must reinstate the coverage as of the date on which the insurer receives the written request. The period for which the coverage must be reinstated may not be less than the balance of the period for which the coverage would have continued under the policy had the coverage not been suspended.
21.75(22)(c)2.
2. Upon receipt of the written request under
subd. 1., the insurer shall notify the service member of the due date for paying the premium for the insurance, and the service member shall pay the premium within 30 days after receiving the notice. For the minimum period of reinstatement required under
subd. 1., the insurer may not increase the amount of the premium over the amount that was chargeable before the suspension of the coverage for that period, except to the extent of any general increase in premiums charged by the insurer for the same professional liability coverage for persons similarly covered by such insurance during the period of the suspension.
21.75(22)(d)1.1. Any action or proceeding in any court or before any public agency, as defined in
s. 36.54 (2) (a) 2., based on the alleged professional negligence or other professional liability of a service member whose professional liability insurance coverage has been suspended under
par. (a) shall be stayed until the end of the period of suspension if all of the following apply:
21.75(22)(d)1.a.
a. The action or proceeding was commenced during the period of suspension.
21.75(22)(d)1.b.
b. The action or proceeding is based on an act or omission that occurred before the date on which the period of suspension began.
21.75(22)(d)1.c.
c. The professional liability insurance policy would, except for the suspension, on its face cover the alleged professional negligence or other professional liability of the service member.
21.75(22)(d)2.
2. Whenever an action or proceeding is stayed under
subd. 1., the action or proceeding shall be considered to have been filed on the date on which the service member's coverage is reinstated under
par. (c) 1.
21.75(22)(d)3.
3. In any action or proceeding in which a stay may be granted under
subd. 1., the period during which the professional liability insurance coverage is suspended may not be included in computing any limitations period for commencing the action or proceeding.
21.75(22)(e)
(e) If a service member whose professional liability insurance coverage is suspended under
par. (a) dies during the period of suspension, all of the following apply:
21.75(22)(e)1.
1. The requirement to stay any action or proceeding under
par. (d) 1. terminates on the date of the service member's death.
21.75(22)(e)2.
2. The insurer that suspended the coverage is liable for any claim for damages for the professional negligence or other professional liability of the deceased service member in the same manner and to the same extent as the insurer would be liable if the service member had died while covered by the insurance but before the claim was filed.
21.75(23)
(23) Notice of benefits under this section. The department shall provide each service member a brochure explaining this section when that service member enters active state service.
21.75 History
History: 2001 a. 24,
105;
2003 a. 69.
21.80
21.80
Reemployment rights after national guard, state defense force, or public health emergency service. 21.80(1)(1)
Definitions. In this section:
21.80(1)(a)
(a) "Active service" means any of the following:
21.80(1)(a)1.
1. Active service in the national guard or the state defense force under an order of the governor issued under this chapter or active service in the national guard under
32 USC 502 (f) that is not considered to be service in the uniformed services.
21.80(1)(a)2.
2. Active service with the state laboratory of hygiene under
s. 36.25 (11) (em) for the purpose of assisting the department of health and family services under
s. 250.042 during a state of emergency relating to public health declared by the governor under
s. 166.03 (1) (b) 1.
21.80(1)(a)3.
3. Active service in the national guard under an order of the governor of that state.
21.80(1)(b)
(b) "Employer" means a person engaging in any activity, enterprise, or business in this state employing one or more persons 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. "Employer" also includes a successor-in-interest of a person employing an individual who has provided notice to that person under
sub. (3) (a).
21.80(1)(d)
(d) "Qualified" means having the ability to perform the essential tasks of an employment position.
21.80(1)(e)
(e) "Reasonable efforts" means, with respect to an action required by an employer under
sub. (4) (a) 1.,
2.,
3., or
4., an action that does not place an undue hardship on the employer.
21.80(1)(g)
(g) "Undue hardship" means, with respect to an action required by an employer under
sub. (4) (a) 1.,
2.,
3., or
4., significant difficulty or expense, when considered in light of all of the following:
21.80(1)(g)2.
2. The overall financial resources of the facility involved in providing the action, the number of persons employed at the facility, the effect of providing the action on the resources and finances of the facility, and any other impact of the action on the operation of the facility.
21.80(1)(g)3.
3. The overall financial resources of the employer, the number of persons employed by the employer, and the number, type, and location of the employer's facilities.
21.80(1)(g)4.
4. The type of operation of the employer, including the composition, structure, and functions of the employer's workforce, the geographic separateness from the employer of the facility involved in providing the action, and the administrative and financial relationship of the facility to the employer.
21.80(2)
(2) More generous rights permitted. Nothing in this section prohibits an employer from providing employees who are called into active service with reemployment rights and benefits that are more generous to the employee than the rights and benefits provided under this section.
21.80(3)(a)(a)
Prerequisites. Subject to
par. (d), any person who is a resident of this state and absent from a position of employment because of active service is entitled to the reemployment rights and benefits specified in this section if all of the following apply:
21.80(3)(a)1.
1. Except as provided in
par. (b), the person or an appropriate officer in the national guard of this or another state or the state defense force has given advanced notice of the active service to the person's employer.
21.80(3)(a)2.
2. Except as provided in
par. (c), the cumulative length of the absence from the position of employment and of all previous absences from a position of employment with the employer by reason of active service or service in the uniformed services does not exceed 5 years.
21.80(3)(a)3.
3. Except as provided in
par. (f), the person reports to the employer or submits an application for reemployment to the employer as required under
par. (e).
21.80(3)(a)4.
4. In the case of active service in the national guard in this or another state or the state defense force, the active service has not been terminated under other than honorable conditions.
21.80(3)(b)
(b)
Notice not required. No notice is required under
par. (a) 1. if the giving of that notice is precluded by military necessity or is otherwise impossible or unreasonable. A determination of military necessity for purposes of this paragraph shall be made according to rules and regulations promulgated by the adjutant general or the federal secretary of defense and is not subject to judicial review.
21.80(3)(c)
(c)
Length of absence limit. The periods of service in the uniformed services described in
38 USC 4312 (c) (1) to (4) and all of the following periods of active service are not included in calculating the 5-year period specified in
par. (a) 2.:
21.80(3)(c)1.
1. Any period of active service, as defined in
sub. (1) (a) 1., beyond that 5-year period that is required to complete an initial period of obligated active service.
21.80(3)(c)2.
2. Any period of active service, as defined in
sub. (1) (a) 1., for which the person, through no fault of the person's own, was unable to obtain orders releasing the person from a period of active service before the expiration of the 5-year period.
21.80(3)(c)3.
3. Any period of active service, as defined in
sub. (1) (a) 1., that was performed to fulfill any additional training requirements determined and certified in writing by the federal secretary of the army, the federal secretary of the air force, or the adjutant general to be necessary for professional development or for completion of skill training or retraining.
21.80(3)(c)4.
4. Any period of active service that was performed by a person who was ordered to, or retained in, active service, other than for training, because of a state emergency declared by the governor, because of a war or national emergency declared by the president of the United States or Congress, because of insurrection, rebellion, riot, invasion, or resistance to the execution of the laws of this state or of the United States, or in support of an operational mission, a critical mission, or any other requirement of the uniformed services.
21.80(3)(d)
(d)
Exceptions. An employer is not required to reemploy a person under this section if the employer shows that any of the following apply:
21.80(3)(d)1.
1. The employer's circumstances have so changed as to make reemployment of the person impossible or unreasonable.
21.80(3)(d)2.
2. The position of employment that the person left to perform active service was for a brief, nonrecurrent period and there was no reasonable expectation that the position of employment would continue indefinitely or for a significant period of time.
21.80(3)(d)3.
3. In the case of a person who is entitled to reemployment under
sub. (4) (a) 3. or
4., the accommodations, training, or effort required under
sub. (4) (a) 3. or
4. would pose an undue hardship on the employer.
21.80(3)(e)1.1. Subject to
subds. 4. and
5., if a person who has been absent from a position of employment because of active service that lasted for less than 31 days, who has been absent from a position of employment for any period of time for the purpose of an examination to determine the person's fitness to perform active service, or who has been absent from a position of employment because the person was hospitalized for or was convalescing from an illness or injury that was incurred in or aggravated during the performance of that active service wishes to receive the reemployment rights and benefits specified in this section, the person must notify the person's employer of the person's intent to return to the position of employment by reporting to the employer by no later than the beginning of the first full regularly-scheduled work period on the first full calendar day following the completion of the active service, examination, or period of hospitalization or convalescence, a period of time that allows for the safe transportation of the person from the place of active service, examination, hospitalization, or convalescence to the person's residence, and a rest period of 8 hours following that transportation period or, if through no fault of the person's own reporting to the employer within that time is impossible or unreasonable, by reporting to the employer as soon as possible after that 8-hour rest period.
21.80(3)(e)2.
2. Subject to
subds. 4. and
5., if a person who has been absent from a position of employment because of active service that lasted for more than 30 days, but less than 181 days, or who has been absent from a position of employment because the person was hospitalized for or was convalescing from an illness or injury that was incurred in or aggravated during the performance of that active service wishes to receive the reemployment rights and benefits specified in this section, the person must notify the person's employer of the person's intent to return to the position of employment by submitting to the employer an application for reemployment by no later than 14 days after the completion of the active service, hospitalization, or convalescence or, if through no fault of the person's own submitting the application within that time is impossible or unreasonable, by submitting to the employer an application for reemployment by no later than the first full calendar day on which submission of the application becomes possible.
21.80(3)(e)3.
3. Subject to
subds. 4. and
5., if a person who has been absent from a position of employment because of active service that lasted for more than 180 days or who has been absent from a position of employment because the person was hospitalized for or was convalescing from an illness or injury that was incurred in or aggravated during the performance of that active service wishes to receive the reemployment rights and benefits specified in this section, the person must notify the person's employer of the person's intent to return to the position of employment by submitting to the employer an application for reemployment by no later than 90 days after the completion of the active service, hospitalization, or convalescence or, if through no fault of the person's own submitting the application within that time is impossible or unreasonable, by submitting to the employer an application for reemployment by no later than the first full calendar day on which submission of the application becomes possible.
21.80(3)(e)4.
4. The period of hospitalization or convalescence specified in
subds. 1.,
2., and
3. may not exceed 2 years, except that if through no fault of the person's own it is impossible or unreasonable for the person to report to the employer within the time specified in
subd. 1. or to apply for reemployment within the time specified in
subd. 2. or
3., that 2-year period shall be extended by the minimum period of time required to accommodate the circumstances that made it impossible or unreasonable for the person to report or apply as so required.
21.80(3)(e)5.
5. A person who fails to report to the person's employer within the time specified in
subd. 1. or who fails to apply for reemployment within the time specified in
subd. 2. or
3. does not automatically forfeit the reemployment rights and benefits specified in this section. Instead, the person shall be subject to the rules, policies, and practices of the person's employer pertaining to discipline for unexcused absences from work.
21.80(3)(f)1.1. A person who submits an application for reemployment under
par. (e) 2. or
3. must, on the request of the person's employer, provide to the employer documentation to establish that the application was submitted within the time limits specified in
par. (e) 2. or
3., that the person's cumulative length of all absences from employment with the employer because of active service or service in the uniformed services does not, except as permitted under
par. (c), exceed 5 years, and, in the case of active service in the national guard or the state defense force, that the person's service was not terminated under other than honorable conditions.
21.80(3)(f)2.
2. An employer may not refuse to reemploy a person who fails to provide any of the documentation specified in
subd. 1. because that documentation does not exist or is not readily available at the time the employer requests that documentation. If after the person is reemployed documentation becomes available that establishes that the person does not meet a requirement specified in
subd. 1., the employer may terminate the person's employment and the provision of any rights and benefits afforded to the person under this section.
21.80(3)(f)3.
3. An employer may not delay or attempt to defeat a reemployment right that the employer is obligated to provide under this section by demanding documentation that does not exist or is not readily available at the time of the demand.
21.80(3)(g)
(g)
Veterans preferences. The right of a person to reemployment under this subsection does not entitle the person to retention, preference, or displacement rights over any person who has a superior claim under
s. 45.35 (4),
62.13 (4) (d),
63.08 (1) (f),
63.37,
63.39 (2m),
66.0509 (1),
230.15 (2m),
230.16 (7) or
(7m),
230.21 (1m),
230.25, or
230.275.
21.80(3)(h)
(h)
Prohibited bases for denial of reemployment. In determining a person's right to reemployment and other benefits under this section, an employer may not deny reemployment or any other benefits based on the timing, frequency, duration, or nature of the person' s active service or service in the uniformed services so long as the requirements under
par. (a) are met.
21.80(4)(a)1.1. Subject to
subds. 3. and
4. and
par. (b), an employer shall reemploy a person who is entitled to reemployment under
sub. (3) and whose period of active service was for less than 91 days promptly on completion of that period of active service in the position of employment in which the person would have been employed if the continuous employment of the person with the employer had not been interrupted by that active service so long as the person is qualified to perform the duties of that position or, if after reasonable efforts by the employer to qualify the person to perform those duties the person is not qualified to perform those duties, in the position of employment in which the person was employed on the date on which the person's period of active service began.
21.80(4)(a)2.
2. Subject to
subds. 3. and
4. and
par. (b), an employer shall reemploy a person who is entitled to reemployment under
sub. (3) and whose period of active service was for more than 90 days promptly on completion of that period of active service in the position of employment in which the person would have been employed if the continuous employment of the person with the employer had not been interrupted by that active service or in a position of employment of like seniority, status, and pay so long as the person is qualified to perform the duties of that position or, if after reasonable efforts by the employer to qualify the person to perform those duties the person is not qualified to perform those duties, in the position of employment in which the person was employed on the date on which the person's period of active service began or in a position of employment of like seniority, status, and pay.
21.80(4)(a)3.
3. Subject to
par. (b), in the case of a person who has a disability that was incurred in or aggravated during a period of active service and who, after reasonable efforts by the employer to accommodate the disability, is not qualified due to the disability to perform the duties of the position of employment in which the person would have been employed if the continuous employment of the person with the employer had not been interrupted by the active service, the employer shall reemploy the person promptly on completion of that period of active service in any other position that is equivalent to that position in seniority, status, and pay, the duties of which the person is qualified to perform or would become qualified to perform with reasonable efforts by the employer, or, if there is no other position of employment available that is equivalent to that position in seniority, status, and pay, in a position that is the nearest approximation to that equivalent position in terms of seniority, status, and pay, consistent with the person's circumstances.
21.80(4)(a)4.
4. Subject to
par. (b), in the case of a person who is not qualified to be employed in the position of employment in which the person would have been employed if the continuous employment of the person with the employer had not been interrupted by the person's active service or in the position of employment in which the person was employed on the date on which the person's period of active service began for any reason other than disability incurred in or aggravated during a period of active service and who cannot become qualified to be so employed with reasonable efforts by the employer, the employer shall reemploy the person promptly on completion of that period of active service in any other position that the person is qualified to perform and that is the nearest approximation to the position of employment in which the person would have been employed if the continuous employment of the person with the employer had not been interrupted by that active service, with full seniority, or if no position of employment that is the nearest approximation to that position is available, in a position of employment that the person is qualified to perform and that is the nearest approximation to the position of employment in which the person was employed on the date on which the person's period of active service began, with full seniority.
21.80(4)(b)1.1. If 2 or more persons who are entitled to reemployment under
sub. (3) in the same position of employment have reported to the employer or applied for reemployment in that position, the person who left employment first shall have the prior right to reemployment in that position.
21.80(4)(b)2.
2. A person who is entitled to reemployment under
sub. (3), but who is not reemployed because of
subd. 1., shall be entitled to reemployment as provided in
par. (a) 1.,
2.,
3., or
4., whichever is applicable, in a position of employment that provides for similar status and pay as the position described in
subd. 1., consistent with the person's circumstances, with full seniority.
21.80(5)
(5) Rights, benefits, and obligations. 21.80(5)(a)(a)
Seniority. A person who is reemployed under this section is entitled to the seniority and other rights and benefits determined by seniority that the person had on the last day of employment before the person's active service began, plus all seniority and other rights and benefits determined by seniority that the person would have had if the continuous employment of the person with the employer had not been interrupted by that active service.
21.80(5)(b)1.1. Subject to
subds. 2. to
5., a person who is absent from employment because of active service is considered to be on furlough or leave of absence while performing the active service and is entitled to receive all rights and benefits not determined by seniority that are generally provided by the employer to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan that is in effect on the day on which the active service began or that is established while the person is performing the active service.
21.80(5)(b)2.
2. If an employer shows that a person who is absent from a position of employment because of active service has knowingly provided written notice of the person's intent not to return to a position of employment with the employer after that active service and, in doing so, was aware of the specific rights and benefits under
subd. 1. that the person would lose while absent from the position of employment, the person is not entitled to the rights and benefits specified in
subd. 1. while absent from employment.
21.80(5)(b)3.
3. A person who is considered to be on furlough or leave of absence under
subd. 1. while performing active service is not entitled to any benefit to which the person would not otherwise be entitled if the person had remained continuously employed.
21.80(5)(b)4.
4. An employer may require a person who is considered to be on furlough or leave of absence under
subd. 1. while performing active service to pay the employee cost, if any, of any benefit that is continued under
subd. 1. to the same extent that other employees who are on furlough or leave of absence are so required.
21.80(5)(b)5.
5. A person who is absent from a position of employment because of active service is entitled to receive coverage under a health benefit plan during the absence and on reemployment as provided in
sub. (6).
21.80(5)(c)
(c)
Protection from discharge. An employer that reemploys under this section a person whose period of active service lasted for more than 30 days, but less than 181 days, may not discharge the person within 180 days after the date of reemployment except for cause. An employer that reemploys under this section a person whose period of active service lasted for more than 180 days may not discharge the person within one year after the date of reemployment except for cause.
21.80(6)
(6) Continuation of health care coverage.
