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2023 - 2024 LEGISLATURE
2023 ASSEMBLY BILL 1156
March 6, 2024 - Introduced by Representatives HONG, HAYWOOD, JOERS, CONLEY, C.
ANDERSON, MOORE OMOKUNDE, SNODGRASS, STUBBS, CLANCY, OHNSTAD,
MADISON, SINICKI, BALDEH, EMERSON, NEUBAUER, SHELTON, BARE, PALMERI,
VINING, RATCLIFF, CONSIDINE, ANDRACA, J. ANDERSON, SUBECK and BILLINGS,
cosponsored by Senators L. JOHNSON, ROYS, HESSELBEIN, WIRCH, PFAFF,
SPREITZER, AGARD, SMITH, CARPENTER and LARSON. Referred to Committee on
Insurance.
***AUTHORS SUBJECT TO CHANGE***
AN ACT to repeal 103.10 (1) (a) 1., 103.10 (1) (a) 2., 103.10 (1m) and 103.10 (14)
(b); to renumber and amend 103.10 (1) (a) (intro.); to amend 103.10 (1) (b),
103.10 (1) (c), 103.10 (3) (a) 1., 103.10 (3) (a) 3., 103.10 (3) (b) 1., 103.10 (3) (b)
2., 103.10 (3) (b) 3., 103.10 (6) (b) (intro.), 103.10 (6) (b) 1., 103.10 (7) (a), 103.10
(7) (b) (intro.), 103.10 (7) (b) 1., 103.10 (12) (c), 103.10 (14) (a), 103.12 (2), 103.12
(3), 111.322 (2m) (a), 111.322 (2m) (b) and 227.03 (2); to repeal and recreate
165.68 (1) (a) 3.; and to create 20.445 (1) (w), 25.17 (1) (er), 25.52, 103.10 (1)
(an), 103.10 (1) (ao), 103.10 (1) (db), 103.10 (1) (dm), 103.10 (1) (dp), 103.10 (1)
(gm), 103.10 (1) (gr), 103.10 (1) (j), 103.10 (3) (b) 4., 103.10 (3) (b) 5., 103.10 (3)
(b) 6., 103.10 (3) (b) 7., 103.10 (3) (b) 8., 103.10 (6) (c), 103.10 (7) (d), 103.10 (8m),
103.10 (11) (d), 103.10 (14) (c) and (d), 103.105 and 103.12 (4) of the statutes;
relating to: the establishment of a family and medical leave insurance
program; family leave to care for a family member and for the active duty of a
family member; the employers that must allow an employee to take family or
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medical leave; allowing a local government to adopt ordinances requiring
employers to provide leave benefits; providing an exemption from emergency
rule procedures; providing an exemption from rule-making procedures;
granting rule-making authority; making an appropriation; and providing a
penalty.
Analysis by the Legislative Reference Bureau
Introduction
This bill does all of the following: expands the family and medical leave law to
allow an employee covered under that law to take family leave to care for a family
member and for the active duty of a family member; lowers the threshold number of
employees above which an employer must allow an employee to take family or
medical leave; and establishes a family and medical leave insurance program under
which certain covered individuals may receive benefits while taking family or
medical leave. The bill defines “family member” as a spouse or domestic partner of
an employee or self-employed individual; a parent, child, sibling, brother-in-law,
sister-in-law, grandparent, stepgrandparent, or grandchild of an employee or
self-employed individual, or of an employee's or self-employed individual's spouse
or domestic partner; or any other person who is related by blood, marriage, or
adoption to an employee or self-employed individual, or to an employee's or
self-employed individual's spouse or domestic partner, and whose close association
with the employee, self-employed individual, spouse, or domestic partner makes the
person the equivalent of a family member of the employee, self-employed individual,
spouse, or domestic partner.
Family and medical leave expansion
Under current law, an employer, including the state, that employs at least 50
individuals on a permanent basis in this state must allow an employee who has been
employed by the employer for more than 52 consecutive weeks and who has worked
for the employer for at least 1,000 hours during the preceding 52 weeks to take up
to eight weeks of family leave in a 12-month period for the birth or adoptive
placement of a child or to care for a child, spouse, domestic partner, or parent of the
employee or a parent of the spouse or domestic partner of the employee who has a
serious health condition and up to two weeks of medical leave in a 12-month period
when the employee has a serious health condition that makes the employee unable
to perform the employee's employment duties.
The bill expands the definition of “family leave” to include leave to obtain
services or care for, to move the residence of, or to prepare for a civil or criminal action
for an employee or the employee's family member who is a victim of domestic abuse,
sexual abuse, or stalking.
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The bill requires an employer, including the state, to allow an employee to take
family leave for up to 12 weeks for the birth, adoption, or placement of a child for
foster care and up to 14 weeks in the aggregate for any kind of family leave. The bill
also allows an employee to take family leave as provided under current law to care
for a family member of the employee who has a serious health condition. In addition,
the bill requires an employer to allow an employee to take family leave because of any
qualifying exigency, as determined by the Department of Workforce Development by
rule, arising out of the fact that the family member of the employee is on deployment
with the U.S. armed forces on covered active duty or has been notified of an
impending call or order to covered active duty.
Family and medical leave insurance program
The bill creates a family and medical leave insurance program, to be
administered by DWD, under which a covered individual who is on family or medical
leave is eligible, beginning on January 1, 2026, to receive up to 12 weeks of family
or medical leave insurance benefits as specified in the bill from the family and
medical leave insurance trust fund created under the bill. For purposes of the bill:
1. A “covered individual" is an individual who worked for any employer and
earned at least $1,000 in the calendar year prior to the year in which the covered
individual claims family or medical leave insurance benefits (application year) or a
self-employed individual who elects coverage under the program, regardless of
whether the individual is employed or unemployed at the time the individual files
an application for family or medical leave insurance benefits.
2. “Family leave" means leave from employment, self-employment, or
availability for employment for the birth, adoptive placement, foster placement, or
pre-placement activities of a child; to care for a family member who has a serious
health condition; because of any qualifying exigency arising out of the fact that the
family member is on covered active duty or has been notified of an impending call or
order to covered active duty; to obtain services or care for, to move the residence of,
or to prepare for a civil or criminal action for an employee or family member who is
a victim of domestic abuse, sexual abuse, or stalking; or for bone marrow and organ
donation.
3. “Medical leave" means leave from employment when a covered individual
has a serious health condition that makes the individual unable to perform his or her
employment duties, leave from self-employment when a covered individual has a
serious health condition that makes the individual unable to perform the duties of
his or her self-employment, or leave from availability for employment when a
covered individual has a serious health condition that makes the individual unable
to perform the duties of any suitable employment.
Under the bill, the amount of family or medical leave insurance benefits for a
week for which those benefits are payable is as follows:
1. For a covered individual, for the amount of the individual's wages that are
up to 50 percent of the state average weekly wages in the calendar year before the
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2. For a covered individual, for the amount of the individual's wages that are
more than 50 percent of the state average weekly earnings in the calendar year
before the individual's application year, 50 percent of that individual's average
weekly earnings.
The weekly benefits payable to a covered individual cannot exceed the state
average weekly wages.
In addition, the bill provides that family or medical leave insurance benefits are
payable beginning on the first day of family or medical leave. The bill also provides
that no family or medical leave insurance benefits are payable for any period of
family or medical leave in which a covered individual is receiving unemployment
benefits or worker's compensation benefits.
Beginning on January 1, 2025, the bill requires each individual employed in
this state, including an individual employed by the state, and each self-employed
individual who elects coverage under the family and medical leave insurance
program to contribute to the trust fund a percentage of his or her wages from
employment or income from self-employment determined by DWD in consultation
with the commissioner of insurance that is sufficient to finance the payments of
benefits under the program and the administration of the program. The bill requires
DWD to collect those contributions in the same manner as DWD collects
contributions to the unemployment reserve fund under current law. Under the bill,
an employer with more than 50 employees must contribute one-half of the
employee-required contribution. The bill requires DWD to implement tiered rates
for contributions by an employer with 50 or fewer employees.
The bill further does the following:
1. Allows a covered individual whose claim for family or medical leave
insurance benefits is denied by DWD, or who believes the amount of approved
benefits is less than what the individual is entitled to, to request a hearing on the
denial or benefits approved and requires DWD to process the request for hearing in
the same manner that requests for hearings on unemployment insurance claims are
processed under current law.
2. Requires employers to place employees who return from family or medical
leave, and who received family or medical leave insurance benefits, in the same
position or a similar position upon returning from leave and to maintain any health
insurance coverage that was in place before the employee took the leave.
3. Allows DWD to seek repayment of family or medical leave insurance benefits
that are paid erroneously or as a result of willful misrepresentation in the same
manner that DWD recovers erroneous payments of unemployment insurance
benefits under current law or to waive recovery of an erroneous payment of those
benefits if the erroneous payment was not the fault of the individual who received
it and if requiring repayment would be contrary to equity and good conscience.
4. Provides that if an individual willfully makes a false statement or
representation, or willfully fails to disclose a material fact, to obtain family or
medical leave insurance benefits, the individual is disqualified from receiving those
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Finally, the bill allows a city, village, town, or county to enact and enforce
ordinances requiring employers to provide leave from employment to their
employees if those ordinances are more generous than those provided under state
law.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SECTION 1. 20.445 (1) (w) of the statutes is created to read:
20.445 (1) (w) Family and medical leave insurance trust fund. From the family
and medical leave insurance trust fund, all moneys deposited in that fund under s.
103.105 (9) for the payments of family or medical leave insurance benefits under s.
103.105 (3) and for the administration of the family and medical leave insurance
program under s. 103.105.
SECTION 2. 25.17 (1) (er) of the statutes is created to read:
25.17 (1) (er) Family and medical leave insurance trust fund (s. 25.52);
SECTION 3. 25.52 of the statutes is created to read:
25.52 Family and medical leave insurance trust fund. There is created
a separate nonlapsible trust fund designated as the family and medical leave
insurance trust fund, to consist of all moneys deposited in that fund under s. 103.105
(9).
SECTION 4. 103.10 (1) (a) (intro.) of the statutes is renumbered 103.10 (1) (a)
and amended to read:
103.10 (1) (a) “Child" means a natural, adopted, or foster child, a stepchild, a
child for whom the individual stood or stands in the place of a parent, or a legal ward
to whom any of the following applies:.
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SECTION 5. 103.10 (1) (a) 1. of the statutes is repealed.
SECTION 6. 103.10 (1) (a) 2. of the statutes is repealed.
SECTION 7. 103.10 (1) (an) of the statutes is created to read:
103.10 (1) (an) “Covered active duty" means any of the following:
1. For a member of a regular component of the U.S. armed forces, duty during
the deployment of the member with the U.S. armed forces.
2. For a member of a reserve component of the U.S. armed forces, duty during
the deployment of the member with the U.S. armed forces under a call or order to
active duty under a provision of law specified in 10 USC 101 (a) (13) (B).
SECTION 8. 103.10 (1) (ao) of the statutes is created to read:
103.10 (1) (ao) “Domestic abuse” has the meaning given in s. 968.075 (1) (a).
SECTION 9. 103.10 (1) (b) of the statutes is amended to read:
103.10 (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.
SECTION 10. 103.10 (1) (c) of the statutes is amended to read:
103.10 (1) (c) Except as provided in sub. (1m) (b) 3., “employer" “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.
SECTION 11. 103.10 (1) (db) of the statutes is created to read:
103.10 (1) (db) “Family member” means a spouse or domestic partner of an
employee; a parent, child, sibling, brother-in-law, sister-in-law, grandparent,
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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 or 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.
SECTION 12. 103.10 (1) (dm) of the statutes is created to read:
103.10 (1) (dm) “Grandchild" means the child of a child.
SECTION 13. 103.10 (1) (dp) of the statutes is created to read:
103.10 (1) (dp) “Grandparent" means the parent of a parent.
SECTION 14. 103.10 (1) (gm) of the statutes is created to read:
103.10 (1) (gm) “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.
SECTION 15. 103.10 (1) (gr) of the statutes is created to read:
103.10 (1) (gr) “Sibling" means a brother, sister, half brother, half sister,
stepbrother, or stepsister, whether by blood, marriage, foster status, or adoption.
SECTION 16. 103.10 (1) (j) of the statutes is created to read:
103.10 (1) (j) “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).
SECTION 17. 103.10 (1m) of the statutes is repealed.
SECTION 18. 103.10 (3) (a) 1. of the statutes is amended to read:
103.10 (3) (a) 1. In a 12-month period no employee may take more than 6 12
weeks of family leave under par. (b) 1. and, 2., and 4. to 8.
SECTION 19. 103.10 (3) (a) 3. of the statutes is amended to read:
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103.10 (3) (a) 3. In a 12-month period no employee may take more than 8 14
weeks of family leave for any combination of reasons specified under par. (b).
SECTION 20. 103.10 (3) (b) 1. of the statutes is amended to read:
103.10 (3) (b) 1. The birth of the employee's natural child, if the leave begins
within 16 52 weeks of the child's birth.
SECTION 21. 103.10 (3) (b) 2. of the statutes is amended to read:
103.10 (3) (b) 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, or for foster care, including
pre-placement activities, if the leave begins within 16 52 weeks of the child's
placement.
SECTION 22. 103.10 (3) (b) 3. of the statutes is amended to read:
103.10 (3) (b) 3. To care for the employee's child, spouse, domestic partner, or
parent, family member if the child, spouse, domestic partner, or parent family
member has a serious health condition.
SECTION 23. 103.10 (3) (b) 4. of the statutes is created to read:
103.10 (3) (b) 4. Because of any qualifying exigency, as determined by the
department by rule, arising out of the fact that the family member of the employee
is on covered active duty or has been notified of an impending call or order to covered
active duty.
SECTION 24. 103.10 (3) (b) 5. of the statutes is created to read:
103.10 (3) (b) 5. Because the employee or the employee's family member is the
victim of domestic abuse, stalking, or sexual abuse, and the employee is using leave
to seek medical attention or obtain psychological or other counseling for the
employee or the employee's family member to recover from any health condition
caused by domestic abuse, sexual abuse, or stalking.
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SECTION 25. 103.10 (3) (b) 6. of the statutes is created to read:
103.10 (3) (b) 6. Because the employee or the employee's family member is the
victim of domestic abuse, stalking, or sexual abuse, and the employee is using leave
to obtain services for the employee or the employee's family member from an
organization that provides services to victims of domestic abuse, sexual abuse, or
stalking.
SECTION 26. 103.10 (3) (b) 7. of the statutes is created to read:
103.10 (3) (b) 7. Because the employee or the employee's family member is the
victim of domestic abuse, stalking, or sexual abuse, and the employee is using leave
to relocate the residence of the employee or the employee's family member due to
domestic abuse, sexual abuse, or stalking.
SECTION 27. 103.10 (3) (b) 8. of the statutes is created to read:
103.10 (3) (b) 8. Because the employee or the employee's family member is the
victim of domestic abuse, stalking, or sexual abuse, and the employee is using leave
to 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.
SECTION 28. 103.10 (6) (b) (intro.) of the statutes is amended to read:
103.10 (6) (b) (intro.) If an employee intends to take family leave because of the
planned medical treatment or supervision of a child, spouse, domestic partner, or
parent family member 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:
SECTION 29. 103.10 (6) (b) 1. of the statutes is amended to read:
103.10 (6) (b) 1. Make a reasonable effort to schedule the medical treatment
or supervision so that it does not unduly disrupt the employer's operations, subject
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to the approval of the health care provider of the child, spouse, domestic partner,
parent, family member or employee.
SECTION 30. 103.10 (6) (c) of the statutes is created to read:
103.10 (6) (c) If an employee intends to take leave under sub. (3) (b) 4. that is
foreseeable because the family member of the employee is on covered active duty or
has been notified of an impending call or order to covered active duty, the employee
shall provide notice of that intention to the employer in a reasonable and practicable
manner.
SECTION 31. 103.10 (7) (a) of the statutes is amended to read:
103.10 (7) (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, family member
or employee, whichever is appropriate.
SECTION 32. 103.10 (7) (b) (intro.) of the statutes is amended to read:
103.10 (7) (b) (intro.) No employer may require certification under par. (a)
stating more than the following:
SECTION 33. 103.10 (7) (b) 1. of the statutes is amended to read:
103.10 (7) (b) 1. That the child, spouse, domestic partner, parent, family
member or employee has a serious health condition.
SECTION 34. 103.10 (7) (d) of the statutes is created to read:
103.10 (7) (d) If an employee requests leave under sub. (3) (b) 4., the employer
may require the employee to provide certification that the family member of the
employee is on covered active duty or has been notified of an impending call or order
to covered active duty issued at such time and in such manner as the department may
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prescribe by rule, and the employee shall provide a copy of that certification to the
employer in a timely manner.
SECTION 35. 103.10 (8m) of the statutes is created to read:
103.10 (8m) SELF-ATTESTATION FOR VICTIM OF DOMESTIC ABUSE, SEXUAL ABUSE, OR
STALKING. If an employee requests leave under sub. (3) (b) 5. to 8., the employer may
require the employee to provide a self-attestation that the employee or the
employee's family member is the victim of domestic abuse, sexual abuse, or stalking.
SECTION 36. 103.10 (11) (d) of the statutes is created to read:
103.10 (11) (d) No employer may consider leave taken under this section as an
absence that may lead to or result in discipline, discharge, demotion, suspension, or
any other adverse action against an employee.
SECTION 37. 103.10 (12) (c) of the statutes is amended to read:
103.10 (12) (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,
family member 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.
SECTION 38. 103.10 (14) (a) of the statutes is amended to read:
103.10 (14) (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. Each employer
shall provide such a written notice to each employee upon hiring and annually
thereafter, when an employee requests leave, and when the employer learns that an
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employee's leave request may be for family or medical leave under this section. Any
employer who violates this subsection shall forfeit not more than $100 for each
offense.
SECTION 39. 103.10 (14) (b) of the statutes is repealed.
SECTION 40. 103.10 (14) (c) and (d) of the statutes are created to read:
103.10 (14) (c) The notice required under this subsection shall include all of the
following:
1. An employee's right to family or medical leave under this section.
2. The amount of family or medical leave generally available for employees.
3. The procedure for requesting family or medical leave.
4. The prohibition on discriminatory or retaliatory personnel actions against
a person for requesting or taking family or medical leave.
5. An employee's right to file a complaint for violations of this section.
(d) The notice required under this subsection shall be provided in English, the
language typically used in communications between the employer and an individual
employee, and any other language that is the primary language of at least 20 percent
of employees at a workplace.
SECTION 41. 103.105 of the statutes is created to read:
103.105 Family and medical leave insurance program. (1) DEFINITIONS.
In this section:
(a) “Application year" means the 12-month period beginning on the first day
of the first calendar week for which family or medical leave insurance benefits are
claimed by a covered individual.
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(b) “Average weekly earnings" means one-thirteenth of the earnings from the
quarter of a covered individual's base period in which the individual's earnings were
the highest.
(c) “Base period” means the period that is used to compute a covered
individual's benefit rights under this section consisting of one of the following:
1. The first 4 of the 5 most recently completed quarters preceding the first day
of a covered individual's application year.
2. If the first quarter of the 5 most recently completed quarters was included
in the base period applicable to a covered individual's application year, the last 4
completed calendar quarters.
3. If a covered individual does not qualify to receive benefits using the period
described in subd. 1. or 2., the period consisting of the 4 most recently completed
quarters preceding the individual's application year.
(d) “Child" means a natural, adopted, or foster child, a stepchild, the child of
a domestic partner, a child for whom the covered individual stands or stood in the
place of a parent, or a legal ward.
(e) “Covered individual" means an individual who worked for any employer or
employers and earned at least $1,000 during the base period or a self-employed
individual who elects coverage under sub. (2), regardless of whether the individual
is employed or unemployed at the time the individual files an application for family
or medical leave insurance benefits.
(f) “Domestic partner" has the meaning given in s. 40.02 (21c) or 770.01 (1).
(g) “Employee" means an individual employed in this state by an employer.
(h) “Employer" means a person engaging in any activity, enterprise, or business
in this state. “Employer" includes the state and any office, department, independent
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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.
(i) “Family leave" means leave from employment, self-employment, or
availability for employment for a reason specified in s. 103.10 (3) (b) 1. to 8. or 103.11
(4).
(j) “Family or medical leave insurance benefits" means family or medical leave
insurance benefits payable under this section from the family and medical leave
insurance trust fund.
(k) “Family member” means a spouse or domestic partner of a covered
individual; a parent, child, sibling, brother-in-law, sister-in-law, grandparent,
stepgrandparent, or grandchild of a covered individual or a covered individual's
spouse or domestic partner; or any other person who is related by blood, marriage,
or adoption to a covered individual or to a covered individual's spouse or domestic
partner or whose close association with the covered individual, spouse, or domestic
partner makes the person the equivalent of a family member of the covered
individual, spouse, or domestic partner.
(L) “Grandchild" means the child of a child.
(m) “Grandparent" means the parent of a parent.
(n) “Medical leave” means leave from employment, self-employment, or
availability for employment when a covered individual has a serious health condition
that makes the individual unable to perform the individual's employment or
self-employment duties or makes the individual unable to perform the duties of any
suitable employment.
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(o) “Parent" means a natural parent, foster parent, adoptive parent,
stepparent, legal guardian of a covered individual or a covered individual's spouse
or domestic partner, or individual who stood in the place of a parent when the covered
individual or the covered individual's spouse or domestic partner was a minor.
(p) “Self-employed individual” means a sole proprietor, independent
contractor, partner of a partnership, member of a limited liability company, or other
self-employed individual engaged in a vocation, profession, or business in this state.
(q) “Serious health condition" has the meaning given in s. 103.10 (1) (g).
(r) “Sibling" means a brother, sister, half brother, half sister, stepbrother, or
stepsister, whether by blood, marriage, adoption, or foster relationship.
(s) “Spouse" means a covered individual's legal husband or wife.
(2) ELECTION BY SELF-EMPLOYED INDIVIDUAL. A self-employed individual may
elect to be covered under this section by filing a written notice of election with the
department in a form and manner prescribed by the department by rule. An initial
election under this subsection becomes effective on the date on which the notice of
election is filed, shall be for a period of not less than 3 years, and may be renewed for
subsequent one-year periods by the filing of a written notice with the department
that the self-employed individual intends to continue coverage under this section.
A self-employed individual who elects coverage under this section may withdraw
that election no earlier than 3 years after the date of the initial election or at such
other times as the department may prescribe by rule by providing notice of that
withdrawal to the department not less than 30 days before the expiration date of the
election.
(3) ELIGIBILITY FOR BENEFITS. (a) A covered individual who is on family or
medical leave is eligible to receive family or medical leave insurance benefits in the
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amount specified in sub. (4) and for the duration specified in sub. (5). No family or
medical leave insurance benefits are payable for any period of family or medical leave
for which a covered individual is receiving unemployment insurance benefits under
ch. 108 or worker's compensation benefits under ch. 102 for a total disability.
(b) To receive family or medical leave insurance benefits, a covered individual
shall file a claim for those benefits not more than 60 days before the anticipated start
date of family or medical leave and not more than 90 days after the start date in the
manner that the department prescribes by rule. The department may waive the
90-day deadline for good cause. On receipt of a claim for family or medical leave
insurance benefits, the department may request from the employee's employer or
from the self-employed individual any information necessary for the department to
determine the individual's eligibility for those benefits and the amount and duration
of those benefits. The employer or self-employed individual shall provide that
information to the department within the time and in the manner that the
department prescribes by rule. A covered individual is not required to provide exact
dates of leave on an application for benefits, and the department may modify benefits
amounts through a claims modification process. If the department determines that
a covered individual is eligible to receive family or medical leave insurance benefits,
the department shall provide those benefits to the individual as provided in subs. (4)
to (6).
(4) AMOUNT OF BENEFITS. (a) For the purposes of this subsection, average
weekly earnings shall be calculated as set forth in s. 102.11 (1). Subject to pars. (b)
and (c), the amount of family or medical leave insurance benefits for a week of leave
for which those benefits are payable is as follows:
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1. For the amount of the covered individual's average weekly earnings that are
up to 50 percent of the state average weekly earnings as determined under s. 108.05,
90 percent of that individual's average weekly earnings.
2. For the amount of the covered individual's average weekly earnings that are
more than 50 percent of the state average weekly earnings as determined under s.
108.05, 50 percent of that individual's average weekly earnings.
(b) The amount of family or medical leave insurance benefits for a fractional
week of leave for which those benefits are payable is one-seventh of the covered
individual's weekly benefit amount under par. (a), multiplied by the number of days
of leave taken that week. Family or medical leave insurance benefits are not payable
for a period of leave of less than one day in duration.
(c) The maximum weekly benefit amount of a covered individual's family or
medical leave insurance benefits is the state average weekly earnings, as determined
under s. 108.05. The department shall annually have the maximum amount of the
weekly benefit published in the Wisconsin Administrative Register.
(d) Subject to the maximum amount provided under this subsection, the benefit
amount for a covered individual shall be based on the proportion of the covered
individual's typical workweek spent at the employment from which the covered
individual is taking family or medical leave. A covered individual who has more than
one employer and who is receiving benefits based on the individual's employment
with one employer may continue to work and receive pay from another employer.
(5) DURATION OF BENEFITS. (a) The maximum number of weeks for which family
or medical leave insurance benefits are payable in an application year is 12 weeks
for any leave specified under ss. 103.10 (3) (b) 1. to 8 and 103.11 and 14 weeks for any
combination of leave specified under ss. 103.10 (3) and (4) and 103.11. A covered
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individual may be paid family or medical leave insurance benefits continuously or,
at the option of the covered individual, intermittently.
(b) Family or medical leave insurance benefits are payable beginning on the
first day that a covered individual takes family or medical leave. The first payment
of family or medical leave insurance benefits shall be made no later than one week
after a covered individual files a claim for those benefits or within one week of the
first day the claim is approved, whichever is later. Subsequent payments shall be
made no less often than semimonthly.
(6) EMPLOYER-PROVIDED BENEFITS. (a) Nothing in this section prohibits an
employer from providing employees with rights to family or medical leave insurance
benefits that are more generous to the employee than the benefits provided under
this section. Except as provided in par. (b), no employer may require an employee
to use or exhaust paid leave or other benefits provided by an employer before or while
receiving benefits under this section. An employee may use any accrued paid leave
benefits while receiving benefits under this section, unless the aggregate amount of
money would exceed the employee's average weekly earnings.
(b) An employer may require that benefits paid under this section be
coordinated with payments under the terms of a short-term disability policy, a
stand-alone bank of paid leave designated solely for family or medical leave, or
under a collective bargaining agreement or employer policy. An employer shall
provide employees with written notice of this requirement.
(7) POSITION UPON RETURN FROM LEAVE. (a) When an employee who receives
benefits under this section returns from family leave or medical leave, the employee's
employer shall follow the procedures set forth in s. 103.10 (8) to place the employee
in a position with the employer.
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(b) No employer may, because an employee received family or medical leave
insurance benefits, reduce or deny an employment benefit that accrued to the
employee before the employee's leave began or, consistent with s. 103.10 (8), accrued
after the employee's leave began.
(8) TAX TREATMENT OF BENEFITS. With respect to the federal income taxation of
family or medical leave insurance benefits, the department shall do all of the
following:
(a) Request an opinion from the internal revenue service on the taxability of
the benefits under federal law.
(b) At the time a covered individual files a claim for those benefits, advise the
individual that those benefits may be subject to federal income taxation, that
requirements exist under federal law pertaining to estimated tax payments, and
that the individual may elect to have federal income taxes withheld from the
individual's benefit payments and may change that election not more than one time
in an application year.
(c) Allow the covered individual to elect to have federal income tax deducted
and withheld from the individual's benefit payments, allow the individual to change
that election not more than one time in an application year, and deduct and withhold
that tax in accordance with the individual's election as provided under 26 USC 3402.
(d) Upon making a deduction under par. (c), transfer the amount deducted from
the family and medical leave insurance trust fund to the federal internal revenue
service.
(e) In deducting and withholding federal income taxes from a covered
individual's benefit payments, follow all procedures specified by the federal internal
revenue service pertaining to the deducting and withholding of federal income tax.
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(9) FAMILY AND MEDICAL LEAVE INSURANCE TRUST FUND. (a) The department shall
determine the amount of the required contribution by each employee, self-employed
individual who elects coverage under sub. (2), and each employer. The required
contribution shall be based on the employee's wages or the self-employed
individual's earnings. Except as otherwise provided in this paragraph, the required
contribution for an employee shall be equally shared between each employee and the
employee's employer. For an employer with 50 or fewer employees, the department
shall establish tiers of reduced contribution rates based on the number of the
employer's employees. No employer contribution is required from self-employed
individuals, and such individuals shall be required to pay only one-half of the
required contribution.
(b) Each employer shall withhold from the wages of its employees the amount
determined by the department under this subsection.
(c) The department shall collect the contributions withheld by employers and
employer-required contributions under par. (a) in the same manner as the
department collects contributions to the unemployment reserve fund under s.
108.17. Section 108.10 applies to issues regarding liability of employers for
contributions under this subsection.
(d) The department shall collect contributions from self-employed individuals
pursuant to procedures established by the department under sub. (13) (b).
(e) The department shall deposit contributions received under this subsection
into the family and medical leave insurance trust fund and credit them to the
appropriation account under s. 20.445 (1) (w).
(f) The department shall use moneys deposited into the family and medical
leave insurance trust fund to pay benefits under sub. (3) and to pay for the
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administration of the family and medical leave insurance program under this section
and for no other purpose.
(10) DENIAL OF CLAIMS; OVERPAYMENTS. (a) A covered individual whose claim for
family or medical leave insurance benefits is denied by the department, or who
believes that benefits approved under this section are less than what the individual
is entitled to receive, may request a hearing on the denial or approved benefits, and
the department shall process the request for a hearing in the same manner that
requests for hearings on unemployment insurance claims are processed under s.
108.09.
(b) If the department pays family or medical leave insurance benefits
erroneously or as a result of willful misrepresentation, the department may seek
repayment of those benefits in the same manner that the department recovers
erroneous payments of unemployment insurance benefits under ss. 108.095, 108.22
(8), and 108.225. The department may waive recovery of an erroneous payment of
family or medical leave insurance benefits if the erroneous payment was not the fault
of the individual who received it and if requiring repayment would be contrary to
equity and good conscience. If an individual willfully makes a false statement or
representation, or willfully fails to disclose a material fact, to obtain family or
medical leave insurance benefits under this section, the department may determine
that the individual is disqualified from receiving those benefits for up to one year
after the date of the disqualification.
(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 otherwise discriminate or retaliate against any
person for exercising any right provided under this section, opposing a practice
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prohibited under this section, filing a complaint or attempting to enforce any right
provided under this section, or testifying or assisting in any action or proceeding to
enforce any right provided under this section.
(c) No collective bargaining agreement or employer policy may diminish or
abridge an employee's rights under this section, including any policy regarding
employee absences. Any agreement purporting to waive or modify an employee's
rights under this section is void as against public policy and unenforceable.
(12) ENFORCEMENT. (a) Any individual who believes that his or her rights under
this section have been interfered with, restrained, or denied in violation of sub. (11)
(a) or that he or she has been discharged or otherwise discriminated against in
violation of sub. (11) (b) may, within 60 days after the violation occurs or the
individual should reasonably have known that the violation occurred, whichever is
later, file a complaint with the department alleging the violation, and the
department shall process the complaint in the same manner as complaints filed
under s. 103.10 (12) (b) are processed. If the department finds that an employer has
violated sub. (11) (a) to (c), the department may order the employer to take action to
remedy the violation, including providing the requested family or medical leave,
reinstating an employee, providing back pay accrued not more than 2 years before
the complaint was filed, and, notwithstanding s. 814.04 (1), paying reasonable actual
attorney fees to the complainant.
(b) After the completion of an administrative proceeding under par. (a),
including judicial review, 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) (a) to (c). Section 103.10 (13) (b) applies to the commencement of an action under
this paragraph.
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(13) ADMINISTRATION. The department shall administer the family and medical
leave insurance program under this section. In administering the program, the
department shall do all of the following:
(a) Establish procedures and forms for filing claims for benefits under this
section.
(b) Establish procedures and forms for collecting contributions from
self-employed individuals.
(c) Collect demographic information of claimants.
(d) Promulgate rules to implement this section.
(e) Use information sharing and integration technology to facilitate the
exchange of information as necessary for the department to perform its duties under
this section.
(f) Conduct a public outreach campaign to inform employers, employees,
self-employed individuals, and other covered individuals regarding the family and
medical leave insurance program under this section. Information provided under
this paragraph shall be provided in English and in any other language customarily
spoken by more than 20 percent of the population of this state.
(g) By September 1 of each year, submit a report to the governor, the joint
committee on finance, and the appropriate standing committees of the legislature
under s. 13.172 (3) on the family and medical leave insurance program under this
section. The report shall include all of the following:
1. The projected and actual rates of participation in the program, aggregated
by reason for use of the paid leave benefits.
2. The premium rates for coverage under the program.
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3. The current balance and projected balance for the upcoming year in the
family and medical leave insurance trust fund under s. 25.52.
4. Average duration of paid leave benefits, aggregated by reason for use of the
paid leave benefits.
5. Average weekly benefit amount.
6. Aggregated demographic information about each applicant and covered
individual who received benefits in the preceding calendar year, including age,
gender, race, ethnicity, primary language, residential zip code, average weekly
earnings, occupation, and employment type.
7. Number of appeals filed and outcomes of appeals.
8. For leave benefits paid to a covered individual who received benefits because
of caring for a family member with a serious health condition, the relationship of the
family member to the covered individual.
9. A description of the department's outreach efforts under par. (f).
(14) RECORDS. Notwithstanding s. 19.35 (1), individual personal information
maintained by the department under this section is confidential and not open to
public inspection and copying and may be disclosed only as follows:
(a) On the request of the individual who is the subject of the information or the
individual's authorized representative, to the individual or representative.
(b) With the written permission of the individual who is the subject of the
information or the individual's authorized representative, to a person named in the
permission.
(c) To a public employee for use in the performance of the public employee's
official duties in the administration of the family and medical leave insurance
program under this section.
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(d) Under a court order or an order of a hearing examiner that is obtained upon
prior notice to the department and a showing to the court or hearing examiner that
the information is relevant to a pending court or administrative action.
(15) NOTICE POSTED. (a) Each employer shall post, on its website and in one or
more conspicuous places where notices to employees are customarily posted, a notice
in a form provided by the department setting forth employees' rights under this
section. Each employer shall also provide annually thereafter such a written notice
individually to each employee upon hiring the employee. Any employer that violates
this subsection shall forfeit not more than $100 for each violation.
(b) The notice required under this section shall include all of the following:
1. An employee's right to family or medical leave insurance benefits under this
section.
2. The amount of family or medical leave insurance benefits generally available
for each employee.
3. The procedure for filing a claim for benefits.
4. The prohibition on discriminatory or retaliatory personnel actions against
a person for applying for or receiving family or medical leave insurance benefits.
5. An employee's right to file a complaint for violations of this section.
(c) The notice required under this section shall be provided in English, the
language typically used in communications between the employer and an individual
employee, and any other language that is the primary language of at least 20 percent
of employees at a workplace.
SECTION 42. 103.12 (2) of the statutes is amended to read:
103.12 (2) In this section, “employment benefit” means anything of value, other
than wages and salary, that an employer makes available to an employee, including
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a retirement, benefit, a pension, benefit, a profit sharing, benefit, or an insurance,
or leave benefit. “Employment benefit” does not include a leave benefit.
SECTION 43. 103.12 (3) of the statutes is amended to read:
103.12 (3) (a) Except as provided in ss. 103.10 (1m) (d) and s. 103.11 (2) (d), no
city, village, town, or county may enact or enforce an ordinance requiring an
employer to provide certain employment benefits to its employees, to provide a
minimum level of employment benefits to its employees, or to prescribe the terms or
conditions of employment benefits provided to its employees.
(b) Except as provided in ss. 103.10 (1m) (d) and s. 103.11 (2) (d), if a city, village,
town, or county has in effect on April 18, 2018, an ordinance requiring an employer
to provide certain employment benefits or to provide a minimum level of employment
benefits to its employees, the ordinance does not apply and may not be enforced.
SECTION 44. 103.12 (4) of the statutes is created to read:
103.12 (4) Notwithstanding sub. (3), a city, village, town, or county may enact
or enforce an ordinance requiring an employer to provide leave benefits to its
employees if those benefits are more generous than the leave benefits provided under
state law.
SECTION 45. 111.322 (2m) (a) of the statutes is amended to read:
111.322 (2m) (a) The individual files a complaint or attempts to enforce any
right under s. 103.02, 103.10, 103.105, 103.11, 103.13, 103.28, 103.32, 103.34,
103.455, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55, or ss. 101.58 to 101.599
or 103.64 to 103.82.
SECTION 46. 111.322 (2m) (b) of the statutes is amended to read:
111.322 (2m) (b) The individual testifies or assists in any action or proceeding
held under or to enforce any right under s. 103.02, 103.10, 103.105, 103.11, 103.13,
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103.28, 103.32, 103.34, 103.455, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55,
or ss. 101.58 to 101.599 or 103.64 to 103.82.
SECTION 47. 165.68 (1) (a) 3. of the statutes is repealed and recreated to read:
165.68 (1) (a) 3. 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.
SECTION 48. 227.03 (2) of the statutes is amended to read:
227.03 (2) Except as provided in s. ss. 103.105 (9) and (10) and 108.105, only
the provisions of this chapter relating to rules are applicable to matters arising out
of s. 66.191, 1981 stats., s. 40.65 (2), 289.33, 303.07 (7) or 303.21 or subch. II of ch.
107 or ch. 102, 108 or 949.
SECTION 49.0Nonstatutory provisions.
(1) PROPOSED PERMANENT RULES. The department of workforce development
shall submit in proposed form the rules required under s. 103.105 (13) (d) to the
legislative council staff under s. 227.15 (1) no later than the first day of the 4th month
beginning after the effective date of this subsection.
(2) RULE-MAKING EXCEPTIONS FOR PERMANENT RULES.
(a) Notwithstanding s. 227.135 (2), the department of workforce development
is not required to present the statement of the scope of the rules required under s.
103.105 (13) (d) to the department of administration for review by the department
of administration and approval by the governor.
(b) Notwithstanding s. 227.185, the department of workforce development is
not required to present the rules required under s. 103.105 (13) (d) in final draft form
to the governor for approval.
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(c) Notwithstanding s. 227.137 (2), the department of workforce development
is not required to prepare an economic impact analysis for the rules required under
s. 103.105 (13) (d).
(d) Notwithstanding ss. 227.14 (2g) and 227.19 (3) (e), the department of
workforce development is not required to submit the proposed rules required under
s. 103.105 (13) (d) to the small business regulatory review board and is not required
to prepare a final regulatory flexibility analysis for those rules.
(3) EMERGENCY RULES. Using the procedure under s. 227.24, the department of
workforce development shall promulgate the rules required under s. 103.105 (13) (d)
for the period before the effective date of the permanent rules promulgated under s.
103.105 (13) (d) but not to exceed the period authorized under s. 227.24 (1) (c), subject
to extension under s. 227.24 (2). Notwithstanding s. 227.24 (1) (a), (2) (b), and (3),
the department is not required to provide evidence that promulgating a rule under
this subsection as an emergency rule is necessary for the preservation of public
peace, health, safety, or welfare and is not required to provide a finding of an
emergency for a rule promulgated under this subsection. Notwithstanding s. 227.24
(1) (e) 1d. and 1g., the department is not required to prepare a statement of the scope
of the rules promulgated under this subsection or present the rules to the governor
for approval.
(4) FAMILY AND MEDICAL LEAVE INSURANCE PROGRAM STAFF. The authorized FTE
positions for the department of workforce development are increased by 45.0 GPR
positions in fiscal year 2023-24, and by 198.0 GPR positions in fiscal year 2024-25,
to be funded from the appropriation under s. 20.445 (1) (w) for the purpose of
administering the family and medical leave insurance program under s. 103.105.
SECTION 50.0Fiscal changes.
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25 - 29 -2023 - 2024 Legislature
LRB-1335/1
MIM:wlj&amn
SECTION 50
ASSEMBLY BILL 1156
(1) TRANSFERS TO FAMILY AND MEDICAL LEAVE INSURANCE TRUST FUND. There is
transferred from the general fund to the family and medical leave insurance trust
fund under s. 25.52 $258,500,000 in the 2023-25 fiscal biennium.
SECTION 51.0Initial applicability.
(1) FAMILY AND MEDICAL LEAVE INSURANCE TRUST FUND CONTRIBUTIONS. Except as
provided in sub. (3), the treatment of s. 103.105 (9) first applies to wages earned after
January 1, 2025.
(2) FAMILY OR MEDICAL LEAVE INSURANCE BENEFITS ELIGIBILITY. Except as provided
in sub. (3), the treatment of s. 103.105 (3) first applies to a period of family leave, as
defined in s. 103.105 (1) (i), or a period of medical leave, as defined in s. 103.105 (1)
(n), commencing on January 1, 2026.
(3) COLLECTIVE BARGAINING AGREEMENTS. This act first applies to an employee
who is affected by a collective bargaining agreement that contains provisions
inconsistent with this act on the day on which the collective bargaining agreement
expires or is extended, modified, or renewed.
(END)
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