Section 103.10. Family or medical leave.

 

(1)   Definitions. In this section:

(a) “Child" means a natural, adopted, or foster child, a stepchild, or a legal ward to whom any of the following applies:

1. The individual is less than 18 years of age.

2. The individual is 18 years of age or older and cannot care for himself or herself because of a serious health condition.

(am) “Christian Science practitioner" means a Christian Science practitioner residing in this state who is listed as a practitioner in the Christian Science journal.

(ar) “Domestic partner" has the meaning given in s. 40.02 (21c) or 770.01 (1) .

(b) Except as provided in sub. (1m) (b) 2. and s. 452.38 , “employee" means an individual employed in this state by an employer, except the employer's parent, spouse, domestic partner, or child.

(c) Except as provided in sub. (1m) (b) 3. , “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.

(d) “Employment benefit" means an insurance, leave or retirement benefit which an employer makes available to an employee.

(e) “Health care provider" means a person described under s. 146.81 (1) (a) to (p) , but does not include a person described under s. 146.81 (1) (hp) .

(f) “Parent" means a natural parent, foster parent, adoptive parent, stepparent, or legal guardian of an employee or of an employee's spouse or domestic partner.

(g) “Serious health condition" means a disabling physical or mental illness, injury, impairment or condition involving any of the following:

1. Inpatient care in a hospital, as defined in s. 50.33 (2) , nursing home, as defined in s. 50.01 (3) , or hospice.

2. Outpatient care that requires continuing treatment or supervision by a health care provider.

(h) “Spouse" means an employee's legal husband or wife.

(1m)   Statewide concern; uniformity.

(a) The legislature finds that the provision of family and medical leave that is uniform throughout the state is a matter of statewide concern and that the enactment of an ordinance by a city, village, town, or county that requires employers to provide employees with leave from employment, paid or unpaid, for any of the reasons specified in par. (c) would be logically inconsistent with, would defeat the purpose of, and would go against the spirit of this section. Therefore, this section shall be construed as an enactment of statewide concern for the purpose of providing family and medical leave that is uniform throughout the state.

(b) In this subsection:

1. “Domestic abuse" has the meaning given in s. 968.075 (1) (a) .

2. “Employee" has the meaning given in s. 104.01 (2) (a) .

3. “Employer" has the meaning given in s. 104.01 (3) (a) .

4. “Family member" means a spouse or domestic partner of an employee; a parent, child, sibling, including a foster sibling, brother-in-law, sister-in-law, grandparent, stepgrandparent, or grandchild of an employee or of an employee's spouse or domestic partner; or any other person who is related by blood, marriage, or adoption to an employee or to an employee's spouse or domestic partner and whose close association with the employee, spouse, or domestic partner makes the person the equivalent of a family member of the employee, spouse, or domestic partner.

5. “Health condition" means a physical or mental illness, injury, impairment, or condition.

6. “Sexual abuse" means conduct that is in violation of s. 940.225 , 944.30 (1m) , 948.02 , 948.025 , 948.05 , 948.051 , 948.055 , 948.06 , 948.085 , 948.09 , or 948.10 or that is in violation of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies.

7. “Stalking" means to engage in a course of conduct, as defined in s. 940.32 (1) (a) , that meets the criteria of s. 940.32 (2) (a) .

(c) Subject to par. (d) , a city, village, town, or county may not enact and administer an ordinance requiring an employer to provide an employee with leave from employment, paid or unpaid, for any of the following reasons:

1. Because the employee has a health condition, is in need of medical diagnosis, care, or treatment of a health condition, or is in need of preventive medical care.

2. To care for a family member who has a health condition, who is in need of medical diagnosis, care, or treatment of a health condition, or who is in need of preventive medical care.

3. Because the employee's absence from work is necessary in order for the employee to do any of the following:

a. Seek medical attention or obtain psychological or other counseling for the employee or a family member to recover from any health condition caused by domestic abuse, sexual abuse, or stalking.

b. Obtain services for the employee or a family member from an organization that provides services to victims of domestic abuse, sexual abuse, or stalking.

c. Relocate the residence of the employee or of a family member due to domestic abuse, sexual abuse, or stalking.

d. Initiate, prepare for, or testify, assist, or otherwise participate in any civil or criminal action or proceeding relating to domestic abuse, sexual abuse, or stalking.

4. To deal with any other family, medical, or health issues of the employee or of a family member.

(d) This subsection does not affect an ordinance affecting leave from employment of an employee of a city, village, town, or county.

(e) Any city, village, town, or county ordinance requiring an employer to provide an employee with leave from employment, paid or unpaid, for any of the reasons specified in par. (c) that is in effect on May 20, 2011, is void.

(2)   Scope.

(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.

(b) This section does not limit or diminish an employee's rights or benefits under ch. 102 .

(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.

(3)   Family leave.

(a)

1. In a 12-month period no employee may take more than 6 weeks of family leave under par. (b) 1. and 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.

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) .

(b) An employee may take family leave for any of the following reasons:

1. The birth of the employee's natural child, if the leave begins within 16 weeks of the child's birth.

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.

3. To care for the employee's child, spouse, domestic partner, or parent, if the child, spouse, domestic partner, or parent has a serious health condition.

(c) Except as provided in par. (d) , an employee shall schedule family leave after reasonably considering the needs of his or her employer.

(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.

(4)   Medical leave.

(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.

(b) No employee may take more than 2 weeks of medical leave during a 12-month period.

(c) An employee may schedule medical leave as medically necessary.

(5)   Payment for and restrictions upon leave.

(a) This section does not entitle an employee to receive wages or salary while taking family leave or medical leave.

(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.

(6)   Notice to employer.

(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.

(b) If an employee intends to take family leave because of the planned medical treatment or supervision of a child, spouse, domestic partner, 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:

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, domestic partner, parent, or employee.

2. Give the employer advance notice of the medical treatment or supervision in a reasonable and practicable manner.

(7)   Certification.

(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, domestic partner, parent, or employee, whichever is appropriate.

(b) No employer may require certification stating more than the following:

1. That the child, spouse, domestic partner, parent, or employee has a serious health condition.

2. The date the serious health condition commenced and its probable duration.

3. Within the knowledge of the health care provider or Christian Science practitioner, the medical facts regarding the serious health condition.

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.

(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) .

(8)   Position upon return from leave.

(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:

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.

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.

(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.

(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.

(9)   Employment right, benefit or position.

(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.

(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.

(c)

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) .

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.

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.

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.

(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.

(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.

(11)   Prohibited acts.

(a) No person may interfere with, restrain or deny the exercise of any right provided under this section.

(b) No person may discharge or in any other manner discriminate against any individual for opposing a practice prohibited under this section.

(c) Section 111.322 (2m) applies to discharge or other discriminatory acts arising in connection with any proceeding under this section.

(12)   Administrative proceeding.

(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.

(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, domestic partner, 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 percent of the cost of the examination and opinion.

(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.

(13)   Civil action.

(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.

(b) An action under par. (a) shall be commenced within the later of the following periods, or be barred:

1. Within 60 days from the completion of an administrative proceeding, including judicial review, concerning the same violation.

2. Twelve months after the violation occurred, or the department or employee should reasonably have known that the violation occurred.

(14)   Notice posted.

(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.

(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) .

1987 a. 287 ; 1989 a. 228 ; 1991 a. 39 ; 1993 a. 446 ; 1995 a. 27 s. 9130 (4) ; 1997 a. 3 , 156 ; 2001 a. 74 ; 2003 a. 33 ; 2009 a. 28 ; 2011 a. 16 ; 2013 a. 362 ; 2015 a. 258 . Cross-reference: See also ch. DWD 225 , Wis. adm. code. “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). 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). 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). 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). 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). “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). 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). 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). 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). 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). 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). 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). 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), 95-1468 . 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 26 , 563 N.W.2d 460 (1997), 94-1628 . By including “the state" as an employer under sub. (1) (c), the state has waived its sovereign immunity from suit under this section. Butzlaff v. DHFS, 223 Wis. 2d 673 , 590 N.W.2d 9 (Ct. App. 1998), 98-0453 . A party who does not prevail in administrative proceedings under sub. (12) may not file a civil action for damages under sub. (13). Butzlaff v. DHFS, 223 Wis. 2d 673 , 590 N.W.2d 9 (Ct. App. 1998), 98-0453 . The federal Employment Retirement Income Security Act (ERISA) does not preempt the operation of this section. Aurora Medical Group v. DWD, 230 Wis. 2d 399 , 602 N.W.2d 111 (Ct. App. 1999), 98-1546 . Affirmed. 2000 WI 70 , 236 Wis. 2d 1 , 612 N.W.2d 646 , 98-1546 . But see Sherfel v. Newson, 768 F.3d 561 (6th Circuit 2014). 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 , 00-0644 . 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 WI App 69 , 242 Wis. 2d 378 , 625 N.W.2d 658 , 00-1918 . An employee whose 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 , 01-0794 . This section does not confer an implied statutory right to a jury trial in a civil action to recover damages for a violation of this section, nor does Article I, Section 5, of the Wisconsin constitution afford the right to a jury trial in a civil action to recover damages for a violation of this section. Harvot v. Solo Cup Company, 2009 WI 85 , 320 Wis. 2d 1 , 768 N.W.2d 176 , 07-1396 . When no party seeks judicial review, an employee has 60 days from the date the 30-day period for judicial review ends to file an action for damages in circuit court under sub. (13) (b). Hoague v. Kraft Foods Global, Inc. 2012 WI App 130 , 344 Wis. 2d 749 , 824 N.W.2d 892 , 12-0133 . Employees have the right to the protections of this section and employers have the corresponding duty to abide by the law's requirements. The fact that undocumented workers have no right to continued employment does not mean that employers are free to ignore employment laws. An employer that terminates an employee based on the exercise of his or her right to take medical leave has violated this section and is subject to liability. Burlington Graphic Systems, Inc. v. Department of Workforce Development, Equal Rights Division, 2015 WI App 11 , 359 Wis. 2d 647 , 859 N.W.2d 446 , 14-0762 . Quagmire or Quantum Leap? The Wisconsin Family and Medical Leave Act. Goeldner and Nelson-Glode. Wis. Law. April 1992. Family & Medical Leave Acts. Sholl and Krupp-Gordon. Wis. Law. Aug. 1993. Family Responsibility Discrimination: Making Room at Work for Family Demands. Finerty. Wis. Law. Nov. 2007.