Chapter 321

321.65(3)(d)2. 2. The position of employment that the person left to perform active state 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.

321.65(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.

321.65(3)(e) (e) Return procedures.

321.65(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 state 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 state 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 state 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 state 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 state 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.

321.65(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 state 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 state 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 state 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.

321.65(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 state 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 state 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 state 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.

321.65(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.

321.65(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.

321.65(3)(f) (f) Documentation.

321.65(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 state service and federal active duty does not, except as permitted under par. (c), exceed 5 years, and, in the case of active state service in the national guard in this or another state or territory of the United States or the state defense force, that the person’s service was not terminated under other than honorable conditions.

321.65(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.

321.65(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.

321.65(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. 45.03 (4), 62.13 (4) (d), 63.08 (1) (f) or (fm), 63.37, 63.39 (2m), 66.0509 (1), 230.15 (2m), 230.16 (7m), 230.21 (1m), 230.25, or 230.275.

321.65(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 state service or federal active duty so long as the requirements under par. (a) are met.

321.65(4) (4) Reemployment positions.

321.65(4)(a) (a) Prompt reemployment required.

321.65(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 state service was for less than 91 days promptly on completion of that period of active state 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 state 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 state service began.

321.65(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 state service was for more than 90 days promptly on completion of that period of active state 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 state 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 state service began or in a position of employment of like seniority, status, and pay.

321.65(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 state 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 state service, the employer shall reemploy the person promptly on completion of that period of active state 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.

321.65(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 state service or in the position of employment in which the person was employed on the date on which the person’s period of active state service began for any reason other than disability incurred in or aggravated during a period of active state 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 state 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 state 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 state service began, with full seniority.

321.65(4)(b) (b) Multiple returning employees.

321.65(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.

321.65(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.

321.65(5) (5) Rights, benefits, and obligations.

321.65(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 state 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 state service.

321.65(5)(b) (b) Continuation of benefits.

321.65(5)(b)1. 1. Subject to subds. 2. to 5., a person who is absent from employment because of active state service is considered to be on furlough or leave of absence while performing the active state 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 state service began or that is established while the person is performing the active state service.

321.65(5)(b)2. 2. If an employer shows that a person who is absent from a position of employment because of active state 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 state 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.

321.65(5)(b)3. 3. A person who is considered to be on furlough or leave of absence under subd. 1. while performing active state service is not entitled to any benefit to which the person would not otherwise be entitled if the person had remained continuously employed.

321.65(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 state 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.

321.65(5)(b)5. 5. A person who is absent from a position of employment because of active state service is entitled to receive coverage under a health benefit plan during the absence and on reemployment as provided in sub. (6).

321.65(5)(c) (c) Protection from discharge. An employer that reemploys under this section a person whose period of active state 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 state service lasted for more than 180 days may not discharge the person within one year after the date of reemployment except for cause.

321.65(6) (6) Continuation of health care coverage.

321.65(6)(a) (a) Option to continue coverage. Notwithstanding s. 632.897, if a person who has coverage under a health benefit plan in connection with the person’s employment is absent from a position of employment because of active state service, the insurer that issued the health benefit plan shall permit the person, and the person’s dependents, to continue coverage under the health benefit plan until the first to occur of the following:

321.65(6)(a)1. 1. Eighteen months have elapsed since the person’s absence from the position of employment began.

321.65(6)(a)2. 2. The day after the date on which the person is required under sub. (3) (e) to report to the employer or apply for reemployment.

321.65(6)(b) (b) Payment of premiums. A person who elects to continue coverage under par. (a) and who is absent from a position of employment for 30 days or less may not be required to pay more than the employee share, if any, of the cost of the coverage. A person who elects to continue coverage under par. (a) and who is absent from a position of employment for more than 30 days may be required to pay up to 102 percent of the full premium for that coverage for the period of continued coverage that exceeds 30 days.

321.65(6)(c) (c) Reinstatement on reemployment. If a person’s coverage under a health benefit plan in connection with his or her employment was terminated because of the person’s active state service and if after returning from that active state service the person is reemployed under sub. (3), coverage under the health benefit plan shall be reinstated for the person and the person’s dependents immediately upon reemployment. With respect to the reinstated coverage, no exclusion or waiting period may be imposed that would not have been imposed had the coverage not been terminated because of the active state service.

321.65(7) (7) Enforcement.

321.65(7)(a) (a) Complaint. Any person who believes that his or her employer has failed or refused, or is about to fail or refuse, to provide to the person any reemployment right or benefit to which the person is entitled under this section may file a complaint with the adjutant general, in such form as the adjutant general may prescribe by rule, summarizing the allegations that form the basis of the complaint. The adjutant general shall investigate the complaint and, if the adjutant general is reasonably satisfied that the person is entitled to the rights or benefits sought, the adjutant general shall endeavor to resolve the complaint by conference, conciliation, or persuasion. If the adjutant general is not reasonably satisfied that the person is entitled to the rights or benefits sought, the adjutant general may refuse to endeavor to resolve the complaint and shall notify the person who filed the complaint that the person may proceed under par. (b) 2. to enforce the person’s rights under this section. If the adjutant general is not able to resolve the complaint, the adjutant general shall notify the person who filed the complaint that the person may proceed under par. (b) 1. or 2. to enforce the person’s rights under this section.

321.65(7)(b) (b) Enforcement procedures.

321.65(7)(b)1. 1. A person who receives notification under par. (a) that the adjutant general was unable to resolve the person’s complaint may request the adjutant general to refer the complaint to counsel, which may include the attorney general, appointed by the governor on the recommendation of the adjutant general for the purpose of prosecuting complaints under this subdivision who shall file a complaint for appropriate relief with the department of workforce development.

321.65(7)(b)2. 2. Subdivision 1. does not preclude a person who has chosen not to file a complaint with the adjutant general under par. (a), whose complaint the adjutant general has refused to endeavor to resolve under par. (a), or who has chosen not to request the adjutant general to refer his or her complaint to counsel under subd. 1. from filing a complaint for appropriate relief with the department of workforce development.

321.65(7)(b)3. 3. The department of workforce development shall process a complaint filed under subd. 1. or 2. in the same manner that employment discrimination complaints are processed under s. 111.39.

321.65(7)(c) (c) Retaliation prohibited. An employer may not discharge or otherwise discriminate against any person for filing a complaint or attempting to enforce a right provided under this section or for testifying or assisting in any action or proceeding to enforce a right provided under this section.

321.65(7)(d) (d) Remedies. If the department of workforce development finds that an employer has failed or refused, or is about to fail or refuse, to provide any reemployment right or benefit to which a person is entitled under this section or has discharged or otherwise discriminated against any person in violation of par. (c), the department of workforce development may order the employer to do any one or more of the following:

321.65(7)(d)1. 1. Take such action as will fully vindicate the rights and benefits of the person under this section.

321.65(7)(d)2. 2. Compensate the person for any loss of wages, salary, or other benefits suffered because of the failure or refusal to provide reemployment rights or benefits under this section or the discharge or other discrimination.

321.65(7)(d)3. 3. Pay the person, as liquidated damages, an amount that is equal to the amount ordered under subd. 2. if the department of workforce development finds that the failure or refusal to provide reemployment rights or benefits under this section or the discharge or other discrimination was willful.

321.65(7)(d)4. 4. Pay the person costs and reasonable actual attorney fees, if the person is not represented by counsel appointed under par. (b) 1.

321.65 History History: 2001 a. 26, 109; 2003 a. 33, 69; 2005 a. 22, 253; 2007 a. 20 s. 9121 (6) (a); 2007 a. 200 ss. 176 to 186; Stats. 2007 s. 321.65; 2009 a. 42; 2015 a. 150; 2017 a. 274.

321.65 Annotation Returning the Veteran to Work. Walther. Wis. Law. July 2006.

321.66 321.66 Leave for Civil Air Patrol service.

321.66(1) (1) Definitions. In this section:

321.66(1)(a) (a) “Emergency service operation” means any of the following operations of the Civil Air Patrol:

321.66(1)(a)1. 1. A search and rescue mission designated by the U.S. air force rescue coordination center; the governor; the adjutant general; or the governing body, chief or acting chief executive officer, or head of emergency management of any county, city, village, town, or federally recognized American Indian tribe or band in this state.

321.66(1)(a)2. 2. An operation to provide disaster relief or humanitarian services, when requested by the federal emergency management agency; the first air force of the U.S. air force; the Civil Air Patrol national operations center; the governor; the adjutant general; the governing body, chief or acting chief executive officer, or head of emergency management of any county, city, village, town, or federally recognized American Indian tribe or band in this state; or, in the case of a public health emergency, as defined in s. 323.02 (16), the department of health services, if that department is designated by the governor under s. 323.10, or a local health department acting under s. 251.05 (3) (e).

321.66(1)(a)3. 3. Operations in support of the U.S. air force designated by the first air force of the U.S. air force or the Civil Air Patrol national operations center.

321.66(1)(b) (b) “Employee” means an individual employed in this state by an employer.

321.66(1)(c) (c) “Employee’s commander” means the Civil Air Patrol commanding officer of the flight, squadron, group, wing, or region to which the employee is assigned, the Civil Air Patrol national commander, or the Civil Air Patrol incident commander or agency liaison for the emergency service operation for which the employee has taken a leave of absence under sub. (2) (a).

321.66(1)(d) (d) “Employer” means a person engaging in any activity, enterprise, or business in this state employing at least 11 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.

321.66(2) (2) Unpaid leave required.

321.66(2)(a) (a) Subject to the limitations specified in par. (b), an employer shall grant a leave of absence without pay to an employee to allow the employee to participate in an emergency service operation if all of the following conditions are met:

321.66(2)(a)1. 1. The employee is a member of the Civil Air Patrol.

321.66(2)(a)2. 2. Prior to the emergency service operation, the employee notifies the employer in writing that the employee is a member of the Civil Air Patrol.

321.66(2)(a)3. 3. For an emergency service operation that begins before the employee is required to report for work, the employee provides a written statement under par. (c) if required by the employer.

321.66(2)(a)4. 4. For an emergency service operation that begins after the employee reports for work, the employee, in addition to providing a written statement under par. (c) if required by the employer, secures authorization from the employer to leave work before leaving to participate in the emergency service operation.

321.66(2)(a)5. 5. The leave of absence does not unduly disrupt the operations of the employer.

321.66(2)(b) (b) No employee may take more than 5 consecutive workdays of leave under par. (a) or more than 15 days of leave under par. (a) in any year.

321.66(2)(c) (c) An employer that grants a leave of absence under par. (a) to an employee may require the employee to provide a written statement from the employee’s commander, or the designated representative of the employee’s commander, certifying that the employee was participating in an emergency service operation at the time of the leave of absence.

321.66(2)(d) (d) For purposes of determining seniority and pay advancement, and for the receipt of employment benefits that may be affected by a leave of absence, the status of an employee who takes a leave of absence under par. (a) shall be considered to be uninterrupted by the leave of absence.

321.66(3) (3) Discrimination based on Civil Air Patrol membership prohibited. No employer or other person may do any of the following:

321.66(3)(a) (a) Refuse to hire or employ an individual, terminate an individual from employment, or discriminate against an individual in promotion, in compensation, or in the terms, conditions, or privileges of employment because the individual is or applies to be a member of the Civil Air Patrol or because the individual performs, has performed, applies to perform, or has an obligation to perform service in the Civil Air Patrol.

321.66(3)(b) (b) Print or circulate or cause to be printed or circulated any statement, advertisement, or publication, or use any form or application for employment, or make any inquiry in connection with prospective employment, that implies or expresses any limitation, specification, or discrimination with respect to an individual or any intent to make such a limitation, specification, or discrimination because the individual is or applies to be a member of the Civil Air Patrol or because the individual performs, has performed, applies to perform, or has an obligation to perform service in the Civil Air Patrol.

321.66(4) (4) Prohibited acts.

321.66(4)(a) (a) No employer or other person may interfere with, restrain, or deny the exercise of the right of an employee to take a leave of absence as provided in sub. (2) (a).

321.66(4)(b) (b) No employer or other person may discharge or discriminate against an employee in promotion, in compensation, or in the terms, conditions, or privileges of employment for taking a leave of absence as provided in sub. (2) (a), opposing a practice prohibited under this section, filing a complaint or attempting to enforce any right under this section, or testifying or assisting in any action or proceeding to enforce any right under this section.

321.66(5) (5) Enforcement. An employee whose right to take a leave of absence under sub. (2) (a) is interfered with, restrained, or denied in violation of sub. (4) (a) or who is refused employment, terminated, discharged, or discriminated against in violation of sub. (3) or (4) (b) may file a complaint with the department of workforce development, and that department shall process the complaint in the same manner that employment discrimination complaints are processed under s. 111.39. If that department finds that an employer or other person has violated sub. (3) or (4) (a) or (b), it may order the employer or other person to take action to remedy the violation, including granting the leave of absence under sub. (2) (a), reinstating the employee, providing compensation in lieu of reinstatement, providing back pay accrued not more than 2 years before the complaint was filed, and paying reasonable actual costs and attorney fees to the complainant.

321.66 History History: 2009 a. 56; 2011 a. 258; 2021 a. 243.

321.67 321.67 Death gratuity; national guard and state defense force. If a national guard member or state defense force member dies from an accidental injury while performing services growing out of and incidental to the member’s employment while the member is on state active duty, the department shall voucher and pay from the appropriation under s. 20.465 (1) (dm) an amount equal to $100,000 to the member’s designated beneficiary.

321.67 History History: 2017 a. 274; 2021 a. 238 s. 45.

321.68 321.68 Continuation of payment.

321.68(1) (1) In this section, “injury” means a mental or physical harm.

321.68(2) (2) The department of administration shall administer this section in the same manner it administers s. 230.36.

321.68(3) (3) 

321.68(3)(a) (a) If a member of the national guard or state defense force suffers injury in the performance of his or her duties while on state active duty, the member shall continue to be fully paid under s. 321.35 or 321.51 upon the same basis as paid prior to the injury.

321.68(3)(b) (b) The full pay under par. (a) shall continue while the member is unable to return to active duty as the result of the injury or until the termination of his or her state active duty. At any time during the member’s period of disability the department may, at the department’s expense, order physical or medical examinations to determine the degree of disability.

321.68(4) (4) A member denied benefits under this section may appeal to the employment relations commission under s. 230.45 (1) (d).

321.68(5) (5) The department is entitled to the right of subrogation for payments made under this section to the same extent an employing agency is entitled to the right of subrogation under s. 230.36 (5).