AB1098: Bill Text

AB1098,9,7 103.10 (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, grandparent, grandchild, sibling, 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.

AB1098,26 Section 26 . 103.10 (14) (a) of the statutes is renumbered 103.10 (14).

AB1098,27 Section 27 . 103.10 (14) (b) of the statutes is repealed.

AB1098,28 Section 28 . 103.105 of the statutes is created to read:

AB1098,9,12 103.105 Family and medical leave insurance program. (1) Definitions. In this section:

AB1098,9,15 (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.

AB1098,9,17 (b) “Average weekly earnings" means the average weekly earnings of a covered individual as calculated under s. 102.11 (1) (a) to (e).

AB1098,9,18 (c) “Child" means a natural, adopted, or foster child, a stepchild, or a legal ward.

AB1098,9,23 (d) “Covered individual" means an individual who worked for any employer or employers for at least 680 hours in the calendar year prior to the individual's application year 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.

AB1098,9,24 (e) “Domestic partner" has the meaning given in s. 40.02 (21c) or 770.01 (1).

AB1098,10,3 (f) “Employee" means an individual employed in this state by an employer, except the employer's child, spouse, domestic partner, parent, grandparent, grandchild, or sibling.

AB1098,10,8 (g) “Employer" means a person engaging in any activity, enterprise, or business in this state. “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.

AB1098,10,11 (h) “Family leave" means leave from employment, self-employment, or availability for employment for a reason specified in ss. 103.10 (3) (b) 1. to 4. or 103.11 (4).

AB1098,10,14 (i) “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.

AB1098,10,15 (j) “Grandchild" means the child of a child.

AB1098,10,16 (k) “Grandparent" means the parent of a parent.

AB1098,10,21 (L) “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 his or her employment or self-employment duties, or makes the individual unable to perform the duties of any suitable employment.

AB1098,10,24 (m) “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.

AB1098,11,3 (n) “Self-employed individual” means a sole proprietor, 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.

AB1098,11,4 (o) “Serious health condition" has the meaning given in s. 103.10 (1) (g).

AB1098,11,6 (p) “Sibling" means a brother, sister, half brother, half sister, stepbrother, or stepsister, whether by blood, marriage, or adoption.

AB1098,11,7 (q) “Spouse" means an employee's legal husband or wife.

AB1098,11,10 (r) “State annual median wage" means the median hourly wage for all occupations in this state, as determined by the bureau of labor statistics of the U.S. department of labor, multiplied by 2,080.

AB1098,11,12 (s) “Waiting period" means the period under sub. (5) (b) 1. for which no family or medical leave insurance benefits are payable.

AB1098,12,2 (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 his or her 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. A self-employed individual who elects coverage under this section must have worked at least 680 hours in self-employment in the calendar year prior to the individual's application year.

AB1098,12,9 (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 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 substituting paid leave of any other type provided by his or her employer or for which a covered individual is receiving unemployment insurance benefits under ch. 108 or worker's compensation benefits under ch. 102.

AB1098,12,21 (b) To receive family or medical leave insurance benefits, a covered individual shall file a claim for those benefits within the time and in the manner that the department prescribes by rule. On receipt of a claim for family or medical leave insurance benefits, the department may request from the individual'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. 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).

AB1098,12,24 (4) Amount of benefits. (a) 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:

AB1098,13,3 1. For a covered individual who earned less than 30 percent of the state annual median wage in the calendar year before the individual's application year, 95 percent of that individual's average weekly earnings.

AB1098,13,6 2. For a covered individual who earned at least 30 percent, but less than 50 percent, of the state annual median wage in the calendar year before the individual's application year, 90 percent of that individual's average weekly earnings.

AB1098,13,9 3. For a covered individual who earned at least 50 percent, but less than 80 percent, of the state annual median wage in the calendar year before the individual's application year, 85 percent of that individual's average weekly earnings.

AB1098,13,12 4. For a covered individual who earned at least 80 percent of the state annual median wage in the calendar year before the individual's application year, 66 percent of that individual's average weekly earnings.

AB1098,13,17 (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.

AB1098,14,2 (c) The weekly benefit amount of a covered individual's family or medical leave insurance benefits may not exceed $1,000. On April 1 of each year, the department shall adjust the maximum daily payment under this paragraph by a percentage equal to the average annual percentage change in the U.S. consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, for the 12 months ending on December 31 of each calendar year. The department shall make pro rata payment of benefits to covered individuals who are receiving benefits on the date the consumer price index was adjusted, retroactive to the date of the adjustment. The department shall annually have the maximum amount of the weekly benefit published in the Wisconsin Administrative Register.

AB1098,14,6 (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. A covered individual may be paid family or medical leave insurance benefits continuously, or at the option of the covered individual, intermittently.

AB1098,14,14 (b) 1. Except as provided in subd. 2., no family or medical leave insurance benefits are payable for the first 5 calendar days in an application year for which a covered individual is eligible for those benefits. Except as provided in subd. 2., family or medical leave insurance benefits are payable beginning on the 6th calendar day in an application year for which a covered individual is eligible for those benefits. The first payment of family or medical leave insurance benefits shall be made no later than 2 weeks after a covered individual files a claim for those benefits and subsequent payments shall be made no less often than semimonthly.

AB1098,14,19 2. If a covered individual uses 10 or more days of family or medical leave insurance benefits in an application year, those benefits shall also be payable with respect to the covered individual's waiting period. An employer may not require a covered individual to use paid or unpaid leave of any other type provided by the employer during the covered individual's waiting period.

AB1098,14,23 (6) Employer-provided benefits. 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 rights provided under this section.

AB1098,15,3 (7) 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:

AB1098,15,9 (a) At the time an 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.

AB1098,15,13 (b) Allow the 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.

AB1098,15,16 (c) Upon making a deduction under par. (b), transfer the amount deducted from the family and medical leave insurance trust fund to the federal internal revenue service.

AB1098,15,19 (d) In deducting and withholding federal income taxes from an individual's benefit payments, follow all procedures specified by the federal internal revenue service pertaining to the deducting and withholding of federal income tax.

AB1098,15,23 (8) Family and medical leave insurance trust fund. (a) Each employee and each self-employed individual who elects coverage under sub. (2) shall contribute to the family and medical leave insurance trust fund a percentage of his or her wages from employment or income from self-employment.

AB1098,16,5 (b) The department shall determine the amount of the contribution required under par. (a). In determining that percentage, the department shall consult with the commissioner of insurance, who shall recommend a percentage that is sufficient to pay the benefits under sub. (3) (b) and to pay for the administration of the family and medical leave insurance program under this section but does not exceed the amount necessary to ensure the solvency of the family and medical leave insurance trust fund.

AB1098,16,7 (c) Each employer shall withhold from the wages of its employees the amount determined by the department under this subsection.

AB1098,16,11 (d) The department shall collect the contributions withheld by employers 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.

AB1098,16,13 (d) The department shall collect contributions from self-employed individuals pursuant to procedures established by the department under sub. (12) (b).

AB1098,16,16 (e) The department shall deposit contributions received under this subsection in the family and medical leave insurance trust fund and credit them to the appropriation account under s. 20.445 (1) (w).

AB1098,16,20 (f) The department shall use moneys deposited in the family and medical leave insurance trust fund to pay benefits under sub. (3) and to pay for the administration of the family and medical leave insurance program under this section and for no other purpose.

AB1098,16,25 (9) Denial of claims; overpayments. (a) A covered individual whose claim for family or medical leave insurance benefits is denied by the department may request a hearing on the denial, 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.

AB1098,17,11 (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 person 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 individual is disqualified from receiving those benefits for one year after the date of the disqualification.

AB1098,17,13 (10) Prohibited acts. (a) No person may interfere with, restrain, or deny the exercise of any right provided under this section.

AB1098,17,18 (b) No person may discharge or otherwise discriminate against any person for exercising any right provided under this section, opposing a practice 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.

AB1098,17,22 (c) No collective bargaining agreement or employer policy may diminish or abridge an employee's rights under this section. Any agreement purporting to waive or modify an employee's rights under this section is void as against public policy and unenforceable.

AB1098,18,10 (11) Enforcement. (a) Any person who believes that his or her rights under this section have been interfered with, restrained, or denied in violation of sub. (10) (a) or that he or she has been discharged or otherwise discriminated against in violation of sub. (10) (b) may, within 30 days after the violation occurs or the person 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. (10) (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.

AB1098,18,15 (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. (10) (a) to (c). Section 103.10 (13) (b) applies to the commencement of an action under this paragraph.

AB1098,18,18 (12) Administration. The department shall administer the family and medical leave insurance program under this section. In administering that program, the department shall do all of the following:

AB1098,18,20 (a) Establish procedures and forms for the filing of claims for benefits under this section.

AB1098,18,22 (b) Establish procedures and forms for collecting contributions from self-employed individuals.

AB1098,18,23 (c) Promulgate rules to implement this section.

AB1098,19,3 (d) Use information sharing and integration technology to facilitate the exchange of information as necessary for the department to perform its duties under this section.

AB1098,19,8 (e) 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.

AB1098,19,15 (f) 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 the projected and actual rates of participation in the program, the premium rates for coverage under the program, the balance in the family and medical leave insurance trust fund under s. 25.52, and a description of the department's outreach efforts under par. (e).

AB1098,19,18 (13) 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:

AB1098,19,20 (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.

AB1098,19,23 (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.

AB1098,20,3 (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.

AB1098,20,6 (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.

AB1098,20,11 (14) Notice posted. Each employer shall post, on its Internet site and 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 that violates this subsection shall forfeit not more than $100 for each violation.

AB1098,29 Section 29 . 103.12 (2) of the statutes is amended to read:

AB1098,20,16 103.12 (2) In this section, “employment benefit” means anything of value, other than wages and salary, that an employer makes available to an employee, including a retirement, benefit, a pension , benefit, a profit sharing, benefit, or an insurance, or leave benefit. The term does not include a leave benefit.

AB1098,30 Section 30 . 103.12 (3) of the statutes is amended to read:

AB1098,20,22 103.12 (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.

AB1098,21,2 (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.

AB1098,31 Section 31 . 103.12 (4) of the statutes is created to read:

AB1098,21,7 103.12 (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.

AB1098,32 Section 32 . 111.322 (2m) (a) of the statutes is amended to read:

AB1098,21,12 111.322 (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.

AB1098,33 Section 33 . 111.322 (2m) (b) of the statutes is amended to read:

AB1098,21,17 111.322 (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, 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.

AB1098,34 Section 34 . 165.68 (1) (a) 3. of the statutes is repealed and recreated to read:

AB1098,21,21 165.68 (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.

AB1098,31 Section 31. 227.03 (2) of the statutes is amended to read:

AB1098,22,2 227.03 (2) Except as provided in s. ss. 103.105 (8) and (9) 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.

AB1098,35 Section 35 . Nonstatutory provisions.

AB1098,22,7 (1) Proposed permanent rules. The department of workforce development shall submit in proposed form the rules required under s. 103.105 (12) (c) 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.

AB1098,22,8 (2) Rule-making exceptions for permanent rules.

AB1098,22,12 (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 (12) (c) to the department of administration for review by the department of administration and approval by the governor.