Chapter DWD 225

DWD 225.16   Answer.

DWD 225.17   Pre-hearing conference.

DWD 225.18   Prehearing discovery.

DWD 225.19   Subpoenas and motions.

DWD 225.20   Disqualification of the administrative law judge.

DWD 225.21   Exchange of names of witnesses and copies of exhibits.

DWD 225.22   Hearings.

DWD 225.23   Record of hearing.

DWD 225.24   Decision and order.

DWD 225.25   Appeals.

DWD 225.26   Pay status and witness fees for state employee parties and state employee witnesses.

DWD 225.27   Filing of documents by facsimile transmission or electronic mail.

Ch. DWD 225 Note Note: Chapter Ind 86 was renumbered chapter ILHR 225 under s. 13.93 (2m) (b) 1., Stats., Register, April, 1996, No. 484. Chapter ILHR 225 was renumbered chapter DWD 225 under s. 13.93 (2m) (b) 1., and corrections made under s. 13.93 (2m) (b) 6. and 7., Stats., Register, November, 1997, No. 503.

DWD 225.001 DWD 225.001 Purpose. The purpose of this chapter is to implement the provisions of s. 103.10, Stats., providing for family and medical leave for employees in certain cases and prohibiting certain practices by establishing interpretations of the provisions of that section to assist in its implementation.

DWD 225.001 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89.

DWD 225.01 DWD 225.01 Definitions and scope.

DWD 225.01(1) (1) When used in this chapter or in s. 103.10, Stats.:

DWD 225.01(1)(a) (a) “Act” means s. 103.10, Stats., unless the context requires otherwise.

DWD 225.01(1)(b) (b) “Action prohibited” means one or more actions or inactions prohibited by the act.

DWD 225.01(1)(bm) (bm) “Agency” means 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.

DWD 225.01(1)(c) (c) “Administrative law judge” means the examiner appointed to conduct hearings arising under s. 103.10 (12), Stats.

DWD 225.01(1)(d) (d) “Child”, “Christian Science practitioner”, “employee”, “employer”, “employment benefit”, “health care provider”, “parent”, “serious health condition: and “spouse” have the same definitions as in the act.

DWD 225.01(1)(e) (e) “Complainant” means the person who files a complaint alleging that an action prohibited by the act has been committed.

DWD 225.01(1)(f) (f) “Days” means calendar days unless the context requires otherwise. When used in time computations in this chapter, “day” means a calendar day, except that if the last day of the time period is a Saturday, Sunday or legal holiday, the last day shall be the next business day.

DWD 225.01(1)(g) (g) “Division” means the equal rights division of the Wisconsin department of workforce development.

DWD 225.01(1)(h) (h) “Filing” means the physical receipt of a document.

DWD 225.01(1)(i) (i) “Group health insurance coverage” means the entire health insurance package offered by an employer including without limitation medical, dental and vision insurance.

DWD 225.01(1)(j) (j) “Person” includes but is not limited to one or more individuals, partnerships, associations, corporations, joint stock or mutual companies, bodies politic or corporate, unincorporated organizations, trusts, legal representatives, trustees or receivers.

DWD 225.01(1)(k) (k) “Probable cause” means a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person in the belief, that an action prohibited by s. 103.10 (11), Stats., probably has been or is being committed.

DWD 225.01(1)(L) (L) “Respondent” means the person or agency alleged to have committed an action prohibited by the act.

DWD 225.01(1)(m) (m) The words “a 12-month period,” as used in s. 103.10 (3) (a) and (4) (b), Stats., mean a calendar year commencing at 12:01 a.m. on January 1 and ending at midnight on December 31 each year.

DWD 225.01(1)(n) (n) The words “a 12-month period”, as used in s. 103.10 (9) (c) 2., Stats., mean a period of 365 consecutive days commencing with the date the first payment is required by an employer to be paid by an employee pursuant to s. 103.10 (9) (c), Stats.

DWD 225.01(1)(o) (o) The words “week” and “weeks”, as used in s. 103.10 (2) (c), Stats., mean 7 consecutive calendar days.

DWD 225.01(2) (2) A person engaging in any activity, enterprise or business in this state shall be deemed to be “employing at least 50 individuals on a permanent basis” within the meaning of s. 103.10 (1) (c), Stats., if, during at least 6 of the preceding 12 calendar months, with partial months to count as full months, the employer, according to its usual personnel recordkeeping practices as required by ss. DWD 272.11 and 274.06, actually treated at least 50 individuals as being permanent employees as to the activities, enterprises or businesses of that employer.

DWD 225.01(3) (3) A person shall be deemed to have “been employed by the same employer for more than 52 consecutive weeks” within the meaning of s. 103.10 (2) (c), Stats., if the person has actually been treated by the employer, according to the usual personnel recordkeeping practices of the employer as required by ss. DWD 272.11 and 274.06, as an employee during each of those 52 weeks, irrespective of the number of hours worked in those weeks and notwithstanding that the employee may have, in that 52-week period, been off work for one or more weeks on vacation leave, sick leave or other leave, or on layoff, if such vacation leave, sick leave or other leave was granted to the employee by the employer according to a regular practice of granting such leaves, or the layoff was initiated by the employer, and if the employer allowed the employee to return to work at the end of the leave or layoff without having to reapply for employment.

DWD 225.01(4) (4) A person shall be deemed to have “worked for the employer for at least 1,000 hours during the preceding 52-week period”within the meaning of s. 103.10 (2) (c), Stats., if the number of hours actually worked in that period plus the number of hours for which the employee was paid pursuant to a regular policy of paid vacation leave, sick leave or other paid leave equals at least 1,000 hours.

DWD 225.01(5) (5) Where a person’s policy with respect to leave for the reasons described in s. 103.10 (3) (b) and (4) (a), Stats., is to provide the same leave as granted in s. 103.10 (3) (b) and (4) (a), Stats., the posting of a statement to that effect together with a copy of the act, in the manner prescribed by s. 103.10 (14) (b), Stats., shall satisfy the requirements of s. 103.10 (14) (b), Stats.

DWD 225.01(6) (6) To the extent that an employer grants leave to an employee for the birth of the employee’s natural child in a manner which is no more restrictive than the leave available to that employee under s. 103.10 (3) (b) 1., Stats., the leave granted by the employer shall be deemed to be leave available to that employee under s. 103.10 (3) (b) 1., Stats.

DWD 225.01(7) (7) To the extent that an employer grants leave to an employee for the placement of a child with the employee for adoption or as a precondition for adoption under s. 48.90 (2), Stats., in a manner which is no more restrictive than the leave available to that employee under s. 103.10 (3) (b) 2., Stats., the leave granted by the employer shall be deemed to be leave available to that employee under s. 103.10 (3) (b) 2., Stats.

DWD 225.01(8) (8) To the extent that an employer grants leave to an employee to care for the employee’s child, spouse or parent in a manner which is no more restrictive than the leave available to that employee under s. 103.10 (3) (b) 3., Stats., the leave granted by the employer shall be deemed to be leave available to that employee under s. 103.10 (3) (b) 3., Stats.

DWD 225.01(9) (9) To the extent that an employer grants leave to an employee relating to the employee’s own health in a manner which is no more restrictive than the leave available to that employee under s. 103.10 (4), Stats., the leave granted by the employer shall be deemed to be leave available to that employee under s. 103.10 (4), Stats.

DWD 225.01(10) (10) To the extent that leave granted by an employer to an employee is deemed by this subsection to be leave available to that employee under the act, the use of that leave granted by the employer shall be use of that leave available under the act.

DWD 225.01 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89; correction in (2) and (3) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; emerg. am. (1) (L) eff. 8-5-03; CR 03-092: cr. (1) (bm), am. (1) (f), (h) and (L) Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (1) (m) Register November 2006 No. 611, eff. 12-1-06.

DWD 225.02 DWD 225.02 When and how leave taken.

DWD 225.02(1) (1) The leave allowed under the act may be taken in non-continuous increments. An employee may schedule and take partial absence leave, as provided in s. 103.10 (3) (d), Stats., or medical leave as provided in s. 103.10 (4) (c), Stats., in actual increments of less than a full workday if the employer allows any other leave to be taken in increments of less than a full workday. The duration of the shortest increment available to the employee under the act shall be equal to the shortest increment the employer allows to be taken by that employee for any other non-emergency leave.

DWD 225.02(2) (2) For purposes of the partial absence leave authorized by s. 103.10 (3) (d), Stats., the word “week” as used in s. 103.10 (3) (a), Stats., means 5 days of leave which would otherwise be workdays for the requesting employee.

DWD 225.02(3) (3) 

DWD 225.02(3)(a) (a) An employee shall be deemed to have scheduled partial absence, for the reasons described in s. 103.10 (3) (b) 1. and 2., Stats., in a fashion that “does not unduly disrupt the employer’s operations” within the meaning of s. 103.10 (3) (d), Stats.,

DWD 225.02(3)(a)1. 1. If the employee provides the employer with notice of the employee’s proposed schedule of partial absence which is at least as much notice as the shortest notice that employee is required to give the employer for the taking of any other non-emergency or non-medical leave, and

DWD 225.02(3)(a)2. 2. If the schedule is sufficiently definite for the employer to be able to schedule replacement employees, to the extent replacement employees are required, to cover for the absences.

DWD 225.02(3)(b) (b) An employee shall be deemed to have scheduled partial absence, for the reasons described in s. 103.10 (3) (b) 3., Stats., in a fashion that “does not unduly disrupt the employer’s operations”within the meaning of s. 103.10 (3) (d), Stats.,

DWD 225.02(3)(b)1. 1. If the employee provides the employer with a proposed schedule for the leave with reasonable promptness after the employee learns of the probable necessity for the leave, and

DWD 225.02(3)(b)2. 2. Except where precluded by the need for health care consultation or treatment, if that proposed schedule is sufficiently definite that the employer is able to schedule replacement employees, to the extent replacement employees need to be scheduled, to cover the absence of the employee taking the leave.

DWD 225.02(3)(c) (c) If an employer has a written policy which requires notice of scheduled absences under s. 103.10 (3) (d), Stats., to be in writing, if this policy governs all employees of the employer within this state, and if the employee has been made aware of this policy, the employee shall advise the employer under this subsection in writing.

DWD 225.02(4) (4) 

DWD 225.02(4)(a) (a) An employee shall be deemed to have given the employer “advance notice of the medical treatment or supervision in a reasonable and practicable manner” within the meaning of s. 103.10 (6) (b) 2., Stats., if the notice identifies the planned dates of the leave and is given to the employer by the employee with reasonable promptness after the employee learns of the probable necessity of the leave.

DWD 225.02(4)(b) (b) If the employer has a written policy which requires notice of leave pursuant to s. 103.10 (6) (b) 2., Stats., to be in writing, if this policy governs all employees of the employer within this state, and if the employee has been made aware of this policy, the notice required by s. 103.10 (6) (b) 2., Stats., shall be in writing except where precluded by the need for health care consultation or treatment.

DWD 225.02(5) (5) An employee shall be deemed to have made “a reasonable effort” to schedule a leave so that it does not “unduly disrupt the employer’s operations” within the meaning of s. 103.10 (6) (b) 1., Stats.,

DWD 225.02(5)(a) (a) If the employee provides the employer with a proposed schedule for the leave with reasonable promptness after the employee learns of the probable necessity of the leave, and

DWD 225.02(5)(b) (b) Except where precluded by the need for health care consultation or treatment, if that proposed schedule is sufficiently definite that the employer is able to schedule replacement employees, to the extent replacement employees need to be scheduled, to cover the absence of the employee taking the leave.

DWD 225.02(6) (6) 

DWD 225.02(6)(a) (a) An employee may commence family leave pursuant to s. 103.10 (3) (b) 1., Stats., no earlier than 16 weeks before the estimated date of birth and no later than 16 weeks after the actual date of birth.

DWD 225.02(6)(b) (b) An employee may commence family leave pursuant to s. 103.10 (3) (b) 2., Stats., no earlier than 16 weeks before the expected date of placement either for adoption or as a precondition for adoption under s. 48.90 (2), Stats., and no later than 16 weeks after the actual date of placement either for adoption or as a precondition for adoption under s. 48.90 (2), Stats.

DWD 225.02(7) (7) Leave available during “a 12-month period”, within the meaning of s. 103.10 (3) (a) and (4) (b), Stats., and s. DWD 225.01 (1) (m), must be used within that 12-month period. No more than one 6 week period of leave may be used by an employee, either as continuous or partial absence leave, as to the birth or adoption of any one child.

DWD 225.02(8) (8) Family leave requested by an employee may be denied by an employer if the employee substantially fails to provide that employer with proper notice of that leave pursuant to s. 103.10 (6), Stats., as interpreted by this section.

DWD 225.02(9) (9) Except where emergency health care consultation or treatment is required, an employer may deny a requested leave where the employer has made a proper request for certification pursuant to s. 103.10 (7), Stats., as to that leave, and the employee requesting the leave fails or refuses, after that proper request, to substantially comply with the provisions of s. 103.10 (7), Stats., as to certification.

DWD 225.02 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89; correction in (7) and (8) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484.

DWD 225.03 DWD 225.03 Substituting leave.

DWD 225.03(1) (1) At the option of the employee, an employee entitled to family or medical leave under the act may substitute, for any leave requested under the act, any other paid or unpaid leave which has accrued to the employee.

DWD 225.03(2) (2) Leave substituted for leave available under the act will be credited, for purposes of using up the leave available under the act, to the extent the substituted leave is actually used by the employee calculated in no less than the increments available pursuant to s. DWD 225.02 (1).

DWD 225.03(3) (3) The employer may not require an employee to substitute any other paid or unpaid leave available to the employee for either family or medical leave under the act.

DWD 225.03(4) (4) If any other type of leave is substituted for family or medical leave, and any seniority or employment benefit would normally accrue during the taking of that other type of leave, that seniority or employment benefit shall accrue during the taking of that substituted leave.

DWD 225.03 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89; correction in (2) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484.

DWD 225.031 DWD 225.031 Consecutive leave. If any employee chooses to utilize leave provided under s. 103.10 (3) or (4), Stats., the employee may not extend leave taken by adding leave of any other type provided by the employer, unless:

DWD 225.031(1) (1) The employee meets the employer’s requirements for taking the other leave which are in effect for all employees; or

DWD 225.031(2) (2) The employer consents to the extension.

DWD 225.031 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89.

DWD 225.04 DWD 225.04 Continuation of insurance.

DWD 225.04(1) (1) The employee shall be deemed to be continuing to make the contributions required of the employee under group health insurance coverage within the meaning of s. 103.10 (9) (b), Stats., if the employee pays the contribution required by the employer within the time required by the employer.

DWD 225.04(2) (2) The employer may not require the employee to pay the employee’s contribution, except into escrow as provided by s. 103.10 (9) (c), Stats., more frequently, or in greater amounts, than was required of the employee prior to the leave being taken.

DWD 225.04(3) (3) The employer may not deny leave under this act based upon nonpayment by the employee into the escrow account.

DWD 225.04(4) (4) In the event an employer requires an employee to fund an escrow account under s. 103.10 (9) (c), Stats., the employer may pay from the escrow account the amount of the employee’s contribution which either is or becomes due during any leave taken under the act.

DWD 225.04 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89.

DWD 225.05 DWD 225.05 Time to commence administrative proceedings. If an employer is not in compliance with the notice posting requirements of s. 103.10 (14) (a), Stats., at the time a violation occurs under s. 103.10, Stats., an employee complaining of that violation shall be deemed not to “reasonably have known” that a violation occurred within the meaning of s. 103.10 (12) (b), Stats., until either the first date that the employer comes into compliance with s. 103.10 (14) (a), Stats., by posting the required notice, or the first date that the employee obtains actual knowledge of the information contained in the required notice, whichever date occurs earlier. If the employer is not in compliance with the notice posting requirements of s. 103.10 (14) (a), Stats., at the time a violation occurs under s. 103.10, Stats., the employer has the burden of proving actual knowledge on the part of the employee within the meaning of this section.

DWD 225.05 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89.

DWD 225.06 DWD 225.06 Complaints.

DWD 225.06(1) (1) Who may file complaint. A complaint may be filed by any person or by the person’s duly authorized representative. A complaint filed by a representative shall state that the representative is authorized to file the complaint.

DWD 225.06(2) (2) Where to file complaints.