DWD 226.17 Prehearing conference.
DWD 226.18 Prehearing discovery.
DWD 226.19 Subpoenas and motions.
DWD 226.20 Disqualification of the administrative law judge.
DWD 226.21 Exchange of names of witnesses and copies of exhibits.
DWD 226.23 Record of hearing.
DWD 226.24 Decision and order.
DWD 226.26 Filing of documents.
DWD 226.001
DWD 226.001
Purpose. This chapter implements the
provisions
of
s.
103.11, Stats., providing for bone marrow and organ donor 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 226.001 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.01(1)(a)
(a) “12-month period,” as used in s.
103.11 (4), Stats., means a calendar year commencing at 12:01 a.m.
on January 1 and ending at midnight on December 31 each year.
DWD 226.01 Note
Note: Section
103.11 (4), Stats., specifies requirements for taking bone marrow and organ donation leave and limits the leave to no more than 6 weeks in a 12-month period.
DWD 226.01(1)(b)
(b) “12-month period," as used in s.
103.11 (9) (c) 2., Stats., means a period of 365 consecutive days commencing with
the
date
the
first
payment
is
required
by
an
employer
to
be paid by an employee under s.
103.11 (9) (c), Stats.
DWD 226.01 Note
Note: Section
103.11 (9) (b) and
(c), Stats., applies to employers who maintain group health insurance coverage for employees. If an employee takes bone marrow and organ donation leave, then, during the period of the leave, s.
103.11 (9) (b), Stats., requires the employer to maintain the coverage under the same conditions that applied immediately before the leave began. Section
103.11 (9) (c) 1., Stats., allows the employer to require the employee to have in escrow with the employer an amount equal to the entire premium or similar expense for 8 weeks of the employee's group health insurance coverage. If an employer requires an employee to have that amount in escrow, s.
103.11 (9) (c) 2., Stats., allows the employee to pay the amount to the employer in equal installments at regular intervals over at least a 12-month period.
DWD 226.01(1)(d)
(d) “Complainant” means the person who files a complaint alleging a violation under s.
103.11, Stats.
DWD 226.01(1)(e)
(e) “Day” means a calendar day. When used in time computations, “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 226.01(1)(f)
(f) “Department" means the Wisconsin department of workforce development.
DWD 226.01(1)(g)
(g) “Employee" means an individual employed in this state by an employer.
DWD 226.01(1)(h)
(h) “Employer” means a person engaging in any activity, enterprise, or business in this state employing at least 50 individuals on a permanent basis, and 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.
DWD 226.01(1)(i)
(i) “Filing” means the physical or electronic receipt of a document by the department, including receipt by hand delivery, U.S. mail, facsimile, email, or receipt on the department's website.
DWD 226.01(1)(j)
(j) “Group health insurance coverage” means the entire health insurance package
offered
by
an
employer
including
, medical, dental, or vision insurance.
DWD 226.01(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 one or more actions prohibited by s.
103.11 (11), Stats., probably has been or is being committed.
DWD 226.01(1)(L)
(L) “Respondent” means the person or agency alleged to
have committed
one or more actions prohibited by s.
103.11 (11), Stats.
DWD 226.01(2)
(2) An employer shall
be
deemed
to
be
“employing at least 50 individuals on a permanent basis” within the meaning of s.
103.11 (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, actually treated at least 50 individuals as being permanent employees as to the activities, enterprises, or businesses of that employer.
DWD 226.01(3)
(3) An employee shall be deemed to have “been employed by the same
employer
for
more
than
52
consecutive
weeks”
within
the meaning of
s.
103.11 (3) (b), Stats., if the person has actually been treated by the employer, according to the usual personnel recordkeeping practices
of
the
employer, 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 226.01(4)
(4)
Under s. 103.11 (3) (b), Stats., a person shall
be
deemed
to
have
“worked
for
the employer
for at least 1,000 hours during the preceding 52-week period,” 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 226.01(5)
(5) Where an employer's policy with respect to leave for the purpose of serving as a bone marrow or organ donor is to provide the same
leave
as
granted
in
s.
103.11 (4),
Stats.,
the posting
of
a
statement
to
that
effect
together
with
a
copy
of
s.
103.11, Stats., in the manner prescribed by s.
103.11 (14) (b), Stats., shall satisfy the requirements of s.
103.11 (14) (b), Stats.
DWD 226.01(6)
(6)
To the
extent
that
an
employer
grants
leave
to
an
employee relating to the employee's service as a bone marrow or organ donor in a manner which is no more
restrictive
than
the
leave
available
to
that
employee
under s.
103.11 (4),
Stats.,
the
leave
granted
by
the
employer
shall
be deemed to
be
leave
available
to
that
employee
under
s.
103.11 (4), Stats.
DWD 226.01 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction in (1) (L) made under s. 35.17, Stats., Register June 2022 No. 798.
DWD 226.02(1)
(1) The leave allowed under s.
103.11, Stats., may be taken in noncontinuous increments. An employee may schedule and take partial absence leave 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
s.
103.11, Stats., shall be equal to the shortest increment the employer allows to be taken by that employee for any other nonemergency
leave. Such partial leave must be necessary for the employee to undergo the bone marrow or organ donation procedure and to recover from it.
DWD 226.02(2)
(2) For partial leave purposes, a “week" means 5 days of leave which would otherwise be workdays for the requesting employee.
DWD 226.02(3)(a)
(a) An employee shall be deemed to have scheduled partial absence that does
not
“unduly
disrupt
the
employer's operations”
within the meaning of s.
103.11 (6) (a), Stats., if all of the following apply:
DWD 226.02(3)(a)1.
1. 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 nonemergency or nonmedical leave.
DWD 226.02(3)(a)2.
2. The schedule under subd.
1. 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 226.02(3)(b)
(b) If an employer has a written policy which requires notice of scheduled partial absences
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 226.02(4)(a)
(a) An employee shall be deemed to have given the employer “advance
notice
of
the
bone marrow or organ donation in a reasonable and practicable manner” within the meaning of s.
103.11 (6) (b), 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 226.02(4)(b)
(b) If the employer has a written policy which requires notice of leave under s.
103.11 (6) (b), 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.
103.11 (6) (b), Stats., shall be in writing, except
where
precluded
by
the
need
for
health
care
consultation or treatment.
DWD 226.02(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.
103.11 (6) (a), Stats., if all of the following apply:
DWD 226.02(5)(a)
(a) 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.
DWD 226.02(5)(b)
(b) Except
where
precluded
by
the
need
for
health
care
consultation or
treatment,
the
proposed
schedule
under par. (a) 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 226.02(6)
(6) Leave requested by an employee may be denied by an employer if the employee substantially fails to provide the employer with
notice
of
the
leave as required
under s.
103.11 (6), Stats., as interpreted by this section. For purposes of this subsection, an employee is considered to have substantially failed to provide proper notice if the employee fails to do at least 2 of the following:
DWD 226.02(6)(c)
(c) Provide a proposed schedule for leave with reasonable promptness.
DWD 226.02(6)(d)
(d) Provide a proposed schedule that is sufficiently definite to allow the employer to schedule replacements, if needed.
DWD 226.02(7)
(7) Except where
emergency health care consultation or treatment is required, an employer may deny a requested leave where the employer has made a request for certification that complies with s.
103.11 (7), Stats., as to that leave, and the employee requesting the leave fails or refuses, after that proper request, to substantially comply
with
s.
103.11 (7),
Stats.,
as
to
certification.
DWD 226.02(8)
(8) Leave under this section is available for only the period necessary for the employee to undergo the bone marrow or organ donor procedure or to recover from that procedure. Family or medical leave under s.
103.10, Stats., may also be available to qualified employees. An employer may not designate leave under this section to run concurrently with family or medical leave under s.
103.10, Stats.
DWD 226.02 Note
Note: Leave under this section may run concurrently with family or medical leave for which an employee is eligible under the federal family and medical leave act,
29 USC 2601 et seq.
DWD 226.02(9)
(9) No more than 6 weeks of bone marrow and organ donation leave may be taken in a 12-month period. Bone marrow and organ donation leave that begins in one 12-month period and ends in the subsequent 12-month period may not exceed 6 weeks. In this subsection, “12-month period" has the meaning given in s.
DWD 226.01 (1) (a).
DWD 226.02 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.03(1)
(1) An employee entitled to bone marrow or organ donor leave under s.
103.11, Stats., may
substitute,
for
any
leave
requested
under
s.
DWD 226.02, any
other
paid
or
unpaid
leave
which
has
accrued
to
the
employee.
DWD 226.03(3)
(3) The
employer
may
not
require
an
employee
to
substitute any other
paid
or
unpaid
leave
available
to
the
employee
for
either bone marrow or organ donation leave under s.
103.11, Stats.
DWD 226.03(4)
(4) If any other type of leave is substituted for bone marrow and organ donor 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 226.03 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.031
DWD 226.031
Consecutive leave. If an employee chooses to use leave provided under s.
103.11 (4), Stats., the employee may not extend leave taken by adding leave of any other type provided by the employer, unless any of the following applies:
DWD 226.031(1)
(1) The employee meets the employer's requirements for taking the other leave which are in effect for all employees.
DWD 226.031 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction in (intro.) made under s. 35.17, Stats., Register June 2022 No. 798.
DWD 226.04(1)
(1) An 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.
103.11 (9) (b), Stats., if the employee
pays the contribution required by the employer within the time required by the employer.
DWD 226.04(2)
(2) The employer may not require the employee to pay the employee's contribution, except into escrow as provided by s.
103.11 (9) (c), Stats., more frequently, or in greater amounts, than was required of the employee before the leave being taken.
DWD 226.04(3)
(3) The employer may not deny leave under s.
103.11, Stats., based upon
nonpayment by the employee into the escrow account.
DWD 226.04(4)
(4) In the event an employer requires an employee to fund an escrow account under s.
103.11 (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 s.
103.11, Stats.
DWD 226.04 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.05
DWD 226.05
Time to commence administrative proceedings. If an employer is not in compliance with the notice posting requirements of s.
103.11 (14) (a), Stats., when a violation occurs
under
s.
103.11, Stats., an employee complaining of that violation shall be deemed not to “reasonably have known” that a violation occurred within the meaning of s.
103.11 (12) (a), Stats., at the time of the violation 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.
103.11 (14) (a), Stats., when a violation occurs under s.
103.11, Stats., the employer has the
burden of proving actual knowledge on the part of the employee
within the meaning of this section.
DWD 226.05 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.06(1)(1)
Who may file a 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 226.06(2)(a)
(a) A complaint may be filed on the department's website or filed in person or by mail, facsimile transmission, or email to the office of the department's equal rights division.
DWD 226.06 Note
Note: The offices of the department's equal rights division are at the following addresses:
DWD 226.06 Note
1. Equal Rights Division, 201 East Washington Avenue, Madison, WI 53703; PO Box 8928, Madison, WI 53708. Facsimile: 608-327-6001. Email address:
ERInfo@dwd.wisconsin.gov.
DWD 226.06 Note
2. Equal Rights Division, 819 North 6th Street, Milwaukee, WI 53203. Facsimile: 414-227-4084. Email address:
ERInfo@dwd.wisconsin.gov. Access to the division's Milwaukee office is on the 7th Street side of the building.
DWD 226.06(3)
(3)
Content of complaint. A
complaint
shall
be submitted on a form provided by the department and signed by the person filing the complaint or by the person's duly authorized representative. The signature constitutes an acknowledgment that the party or the representative has read the complaint; that
to
the
best
of
that
person's knowledge, information, and belief the complaint is true and correct; and that the complaint is not being used for any improper purpose, such as to harass the party
against
whom
the
complaint
is
filed.
Complaints filed on the department's website shall be acknowledged using the certification method required in the instructions on the website. The complaint
shall contain all of
the following information:
