AB1038: Bill Text

AB1038,2,8 An Act to renumber 60.11 (2) (b) and 108.07 (5); to renumber and amend 49.688 (1) (c), 70.47 (3) (aL), 108.04 (3), 108.062 (4) and 108.062 (19); to amend 13.101 (4), 20.866 (2) (xm), 40.22 (1), 40.22 (2m) (intro.), 40.22 (2r) (intro.), 40.22 (3) (intro.), 40.26 (1m) (a), 40.26 (1m) (b), 40.26 (5) (intro.), 40.51 (8), 40.51 (8m), 66.0137 (4), 71.01 (6) (L) 3., 71.22 (4) (L) 3., 71.22 (4m) (L) 3., 71.26 (2) (b) 12. d., 71.34 (1g) (L) 3., 71.42 (2) (L) 3., 71.98 (3), 74.35 (5) (c), 74.37 (4) (b), 108.04 (13) (d) 3. b., 108.04 (13) (d) 4. b., 108.062 (1) (b), 108.062 (3), 108.062 (15), 108.14 (8n) (e), 108.141 (7) (a), 108.16 (6m) (a), 115.385 (1) (intro.), 115.415 (1) (b), 115.999 (1) (d) 1., 115.999 (2m) (b) 1. a., 118.38 (2) (am) (intro.), 118.38 (3), 118.60 (7) (an) 1., 119.23 (7) (an) 1., 119.33 (2) (b) 3. b., 119.33 (2) (b) 3. c., 119.33 (5) (b) 2., 119.9002 (2) (d) 2. a., 119.9002 (2) (d) 2. b., 119.9002 (2) (d) 3. a., 119.9002 (2) (d) 3. b., 119.9004 (3) (b) 2., 120.13 (2) (g), 146.40 (3), 185.983 (1) (intro.), 450.11 (5) (a), 609.83, 625.12 (2), 628.34 (3) (a) and 895.51 (title); and to create 13.101 (4d), 40.26 (5m), 40.26 (6), 49.688 (1) (c) 2., 49.688 (10m), 60.11 (2) (b) 2., 70.47 (3) (aL) 2., 100.307, 102.03 (6), 102.565 (6), 103.13 (2m), 108.04 (2) (d), 108.04 (3) (b), 108.062 (2m), 108.062 (3r), 108.062 (4) (a) 2., 108.062 (19) (a) and (b), 108.062 (20), 108.07 (5) (bm), 115.385 (6), 115.7915 (8m), 118.38 (4), 118.60 (12), 119.23 (12), 153.23, 323.19 (3), 323.19 (4), 323.265, 323.2911, 323.2912, 323.2913, 323.2915, 440.08 (5), 450.11 (5) (br), 609.205, 609.846, 609.885, 632.729, 632.895 (14g), 632.895 (16v), 895.4801, 895.51 (1) (bd), 895.51 (1) (bg), 895.51 (1) (dp), 895.51 (2r) and 895.51 (3r) of the statutes; relating to: state government response to the COVID-19 pandemic.

Analysis by the Legislative Reference Bureau

1.

agriculture

Eligibility for local fair aids

This bill modifies the eligibility requirements for agricultural societies, boards, and associations to receive local fair aid provided by the Department of Agriculture, Trade and Consumer Protection. To remain eligible for local fair aid from DATCP, current law requires local agricultural societies, boards, and associations to operate a fair each year. The bill allows agricultural societies, boards, and associations to remain eligible for local fair aid if a local fair is not held during 2020 because of the public health emergency declared on March 12, 2020, by executive order 72.

Prohibiting retailers from accepting certain returns

This bill prohibits a retailer from accepting a return of food products, personal care products, cleaning products, and paper products during the public health emergency declared on March 12, 2020, by executive order 72, or during the 30 days immediately after the end of that public health emergency. The bill contains exceptions, allowing retailers to accept returns of food, personal care, cleaning, or paper products made within seven days of purchase and returns of adulterated or defective food, personal care, cleaning, or paper products. Under the bill, retailers may accept returns of other types of products.

2.

campaign finance

Communications relating to public health emergency

Currently, under Wisconsin's campaign finance law, a person elected to a state or local government elective office who becomes a candidate for a national, state, or local government office may not use public funds to pay the cost of materials or distribution for 50 or more pieces of substantially identical material during the campaign season. This bill exempts from this prohibition communications during the public health emergency declared on March 12, 2020, by executive order 72, that relate to the public health emergency.

3.

Correctional system

Death of an inmate

Under current law, if an individual dies while he or she is in the legal custody of the Department of Corrections and confined to a correctional facility located in this state, an autopsy on the deceased individual must be performed. Under this bill, for the duration of the public health emergency relating to COVID-19, if an individual who has been diagnosed with COVID-19 dies, the coroner or medical examiner may perform limited examination of the deceased individual instead of a full autopsy, which may include an external examination of the body of the deceased individual, a review of the deceased individual's medical records, or a review of the deceased individual's radiographs.

4.

courts and procedure

Liability exemption for persons who manufacture, distribute, or sell emergency medical supplies

This bill establishes a civil liability exemption for persons who manufacture, distribute, or sell emergency medical supplies to respond to the public health emergency during the public health emergency related to COVID-19 declared by the federal secretary of health and human services or the national emergency related to COVID-19 declared by the president. The bill defines “emergency medical supplies” to mean any medical equipment or supplies necessary to limit the spread of, or provide treatment for, a disease associated with the public health emergency related to the COVID-19 pandemic, including life support devices, personal protective equipment, cleaning supplies, and any other items determined to be necessary by the secretary of health services. Under the bill, any person engaged in the manufacturing, distribution, or sale of emergency medical supplies who donates or sells, for a price not to exceed a certain amount established in the bill, the emergency medical supplies to a charitable organization or governmental unit to respond to the public health emergency related to COVID-19 is immune from civil liability for the death of or injury to an individual caused by emergency medical supplies donated or sold.

The bill also provides that any charitable organization that distributes free of charge emergency medical supplies received from a manufacturer, distributor, or seller is immune from civil liability for a death or injury caused by the emergency medical supplies.

5.

Economic development

Plan to provide support to major industries

This bill requires the Wisconsin Economic Development Corporation to submit a report to the legislature and the governor by June 30, 2020, that includes a plan for providing support to the major industries in Wisconsin that have been adversely affected by the COVID-19 public health emergency, including tourism, manufacturing, agriculture, construction, retail, and services.

6.

Education

Pupil examinations; public health emergency exception for the 2019-20 school year

Under current law, school boards, independent charter schools, private schools participating in the Milwaukee Parental Choice Program, Racine Parental Choice Program or Wisconsin Parental Choice Program and, under some circumstances, a private school participating in the Special Needs Scholarship Program are required to annually administer examinations adopted by the state superintendent of public instruction to pupils in the fourth, eighth, ninth, tenth, and eleventh grades. These examinations are commonly referred to as the Wisconsin Student Assessment System, which include The Forward Exam, ACT ASPIRE, the ACT, and Dynamic Learning Maps. Under the bill, the requirements to administer the WSAS do not apply in the 2019-20 school year.

Current law also requires school boards, independent charter schools, and private schools participating in a parental choice program to annually administer a standardized reading test developed by the Department of Public Instruction to third grade pupils. Under the bill, requirements to administer the third grade standardized reading test do not apply in the 2019-20 school year.

Under current law, school boards and independent charter schools are required to evaluate teachers and principals using an educator effectiveness evaluation system that considers pupil performance on statewide assessments. Under the bill, school boards and independent charter schools are prohibited from considering pupil performance on statewide assessments in evaluating teachers and principals in the 2019-20 school year.

School and school district accountability report for the 2019-20 school year

The bill prohibits DPI from publishing a school and school district accountability report in the 2020-21 school year.

Under current law, DPI is required to publish a school and school district accountability report each year by November 30. To measure school performance and school district improvement, particularly measures related to pupil achievement in reading and math, DPI uses data derived from pupil performance on statewide assessments administered in the prior school year. The bill also changes references to accountability reports published in a specific school year or years to the most recently published accountability report or reports to account for the fact that, under the bill, DPI will not publish an accountability report in the 2020-21 school year.

Waiver of laws and rules related to parental choice programs, the Special Needs Scholarship Program, and independent charter schools; schools closed by the Department of Heath Services or a local health officer

Under the bill, during the public health emergency declared on March 12, 2020, by executive order 72, if the Department of Health Services or a local health officer closes schools for ten or more school days during a school year, DPI may waive state education statutes, or rules promulgated under those statutes, related to 1) a parental choice program or the SNSP, 2) private schools participating in a parental choice program or the SNSP, or 3) independent charter schools. Under the bill, DPI may also establish alternate deadlines for requirements in education laws or rules if the original deadline occurs between the date the schools are closed and 120 days after the day schools are reopened or the original deadline relates to another event that occurs during that same period.

Under current law, upon request from a school board and a public hearing, DPI may waive school district and school board requirements in a state education statute or rule. However, under current law, a school board may not request, and DPI may not grant, a waiver from state education statutes and rules related to certain topics, including the health or safety of pupils, confidentiality of pupil records, and pupil assessments.

Exceptions in parental choice programs and the Special Needs Scholarship Program; schools closed by the Department of Heath Services or a local health officer

Current law allows DPI to bar a private school from participating in a parental choice program or the SNSP in the current school year if the private school fails to comply with specified program requirements. For certain program violations, current law allows DPI to bar a private school from participating in the following school year. Current law also allows DPI to withhold program payments if a participating private school fails to comply with program requirements.

Under the bill, during the public health emergency declared on March 12, 2020, by executive order 72, if a participating private school is closed by DHS or a local health officer for ten or more school days during a school year, DPI may not withhold program payments or bar the private school from participating in the parental choice program or the SNSP in the current or following school year if the private school demonstrates to DPI that the failure to comply with the program requirement was due to the school closure.

Under current law, a private school participating in a parental choice program must maintain a cash and investment balance that is at least equal to its reserve balance. Under the bill, during the public health emergency declared on March 12, 2020, by executive order 72, this requirement does not apply in a school year during which the private school is closed by DHS or a local health officer for ten or more school days.

Private schools; waiver for hours of instruction in the 2019-20 school year

Under the bill, in the 2019-20 school year, upon request from a private school, DPI may waive any requirement related to a private school providing hours of instruction.

Wisconsin Parental Choice Program; application deadlines for the 2020-21 school year

The bill extends two deadlines related to pupil applications to attend a private school in the Wisconsin Parental Choice Program in the 2020-21 school year. First, under the bill, a private school participating in the WPCP may accept WPCP applications for the 2020-21 school year from pupils until May 14, 2020, rather than April 16, 2020, under current law. Second, under the bill, private schools participating in the WPCP have until May 29, 2020, to submit information to DPI about the number of WPCP applications the private school received from pupils for the 2020-21 school year. Under current law, private schools participating in the WPCP are required to submit this information to DPI by May 1, 2020.

Full-time open enrollment program; application deadlines for the 2020-21 school year

Under current law, a pupil may attend a public school in a school district other than the pupil's resident school district under the full-time open enrollment program (OEP). Current law specifies specific dates by which various steps must occur in the OEP application process. For example, under current law, the last day to submit an application to attend a nonresident school district under the OEP in the 2020-21 school year is April 30, 2020.

This bill extends statutory deadlines related to applications to attend a nonresident school district under the OEP by approximately 30 days. For example, under the bill, the last day to submit an application to attend a nonresident school district under the OEP in the 2020-21 school year is May 29, 2020.

Reports on virtual instruction and other operations during the public health emergency

Under the bill, by November 1, 2020, each school board must submit a report to DPI that contains various information about school district operations during the public health emergency, including whether the virtual instruction was implemented in the school district, the number of staff who were laid off, the number of lunches provided, and the amount of certain expenditure reductions. The report must also include any challenges or barriers the school board faced in implementing virtual instruction and the school board's recommendations for best practices related to providing virtual instruction when schools are closed. Under the bill, DPI must compile and report the information it receives from school boards to the legislature by January 1, 2021. The bill defines the “public health emergency” as the period during the 2019-20 school year when schools were closed by DHS. Finally, by June 30, 2020, the bill requires DPI to post on its Internet site guidance on best practices for schools returning to in-person instruction.

7.

emergency management

Transfer of employees between executive branch agencies

This bill authorizes the secretary of administration to transfer employees from any executive branch agency to another executive branch agency during the public health emergency declared on March 12, 2020, by executive order 72. Under the bill, the agency to which an employee is transferred shall pay all salary and fringe benefit costs of that employee.

Waiving in-person requirements

This bill allows a state entity to waive any requirement that an individual appear in person during the public health emergency declared on March 12, 2020, by executive order 72, if the waiver assists in the state's response to the state of emergency or if the requirement may increase the public health risk.

8.

Employment

Unemployment insurance

Unemployment insurance; waiting period

Currently, a claimant must wait one week after becoming eligible to receive unemployment insurance benefits before the claimant may receive benefits for a week of unemployment. The waiting period does not affect the maximum number of weeks of a claimant's benefit eligibility.

This bill suspends the application of the one-week waiting period for benefit years that began after March 12, 2020, and before February 7, 2021. The bill requires the Department of Workforce Development to seek the maximum amount of federal reimbursement for benefits that are, during this time period, payable for the first week of a claimant's benefit year as a result of the suspension.

Unemployment insurance; benefit charging

This bill requires DWD, when processing claims for UI benefits and evaluating work-share plans, to determine whether a claim or plan is related to the public health emergency declared by the governor under executive order 72. If a claim is so related, the bill provides that the regular benefits for that claim for weeks occurring after March 12, 2020, and before December 31, 2020, not be charged as is normally provided. Instead, the benefits for those weeks are, subject to numerous exceptions, to be charged to the balancing account of the unemployment reserve fund (pooled account financed by all employers who pay contributions that is used to pay benefits that are not chargeable to any employer's account) or, in the case of employers that do not pay contributions (taxes) but instead reimburse DWD for benefits directly (reimbursable employers), the benefits are to be paid in the manner specified under current law for certain other circumstances involving benefits chargeable to reimbursable employers.

The bill also requires the secretary of workforce development, to the extent permitted under federal law, to seek advances to the state's unemployment reserve fund from the federal government, so as to allow Schedule D of the unemployment insurance contribution (tax) rates to remain in effect through the end of calendar year 2021. Schedule D includes the lowest unemployment insurance contribution rates specified under current law, and is in effect for any calendar year whenever, as of the preceding June 30, the state's unemployment reserve fund has a cash balance of at least $1,200,000,000.

Unemployment insurance; work-share programs

Current law allows an employer to create a work-share program within a work unit of the employer. Under a work-share program, the working hours of all of the full-time employees in the program are reduced in an equitable manner in lieu of a layoff of some of the employees and a continuation of full-time employment by the other employees. A claimant for UI benefits who is included in a work-share program may receive UI benefits during his or her continued employment with the work-share employer in an amount equal to the claimant's benefit for total unemployment multiplied by the same percentage reduction in normal working hours that the claimant incurs under the program.

This bill suspends all of the following for work-share plans submitted until December 31, 2020:

1. The requirement that a work-share plan be limited to a particular work unit of the employer. The bill instead, during the suspension period, allows a work-share plan to cover any employees of the employer.

2. The requirement that the reduction in working hours under a work-share program must be at least 10 percent but not more than 50 percent of the normal hours per week of the employees included under the plan. The bill instead, during the suspension period, increases the permissible reduction in working hours under a work-share program to be not more than 60 percent of the normal hours per week of the employees included under the plan or the highest permissible reduction allowed under federal law, whichever is greater.

3. The requirements that at least 10 percent of the employees in a work unit be included in a work-share plan and that the employer provide for initial coverage under the plan of at least 20 positions that are filled on the effective date of the work-share program. The bill instead, during the suspension period, requires only that the work-share plan cover at least two positions that are filled on the effective date of the work-share program.

4. The requirement that reduced working hours be apportioned equitably among employees in the work-share program.

The bill also provides that, during the period specified above, a work-share program becomes effective on the later of the Sunday of or after approval of the work-share plan, instead of the second Sunday after approval of the plan, unless a later Sunday is specified.

The bill, however, allows the secretary to waive the application of the changes described above if doing so is necessary to comply with federal requirements or for this state to qualify for full federal financial participation in the cost of administration of the work-share program and financing of work-share benefits.

The bill also requires DWD to allow employers to submit work-share plan applications using an online form and to provide assistance to employers with submitting applications and developing work-share plans.

The bill also specifies that a work-share program shall be governed by the law that was in effect when the plan was approved, until the program ends as provided under current law.

Worker's compensation

Rebuttable presumption that injury caused to first responders during current public health emergency is caused by employment

This bill provides that, for the purposes of worker's compensation, an injury caused to a first responder, during any public health emergency declared by the governor on March 12, 2020, by executive order 72 and ending 30 days after the termination of the order, is presumed to be caused by the individual's employment. The presumption requires a diagnosis or positive test for COVID-19, and may be rebutted by specific evidence that the injury was caused outside of employment.

Other employment

Employee records during public health emergency

Under the bill, the requirements that an employer provide an employee's personnel record within seven working days after receiving the request, that the inspection be at a location near the employee's place of employment, and that the inspection be during normal working hours are suspended during the public health emergency declared on March 12, 2020, by executive order 72.

Suspension of certain time limits and in-person meetings for grievance process during public health emergency

Under the bill, a state employee does not waive his or her right to appeal an adverse employment decision if the employee does not timely file the complaint or appeal during the public health emergency declared on March 12, 2020, by executive order 72. Under current law, an employee waives such right if the employee does not timely file.

Under the bill, an appointing authority is not required to hold an in-person meeting with a state employee who has filed an employment grievance during the public health emergency declared on March 12, 2020, by executive order 72.

Use of annual leave during public health emergency

Under the bill, a state employee may take annual leave during the public health emergency declared on March 12, 2020, by executive order 72, even if the employee has not completed the first six months of the employee's probationary period. If the employee terminates employment before earning any leave the employee used, the employer may deduct the amount of unearned leave from the employee's final pay. Under current law, an employee may not take annual leave during the first six months of the employee's probationary period.

Limited term employees during public health emergency