Register June 2022 No. 798
Chapter DWD 226
BONE MARROW AND ORGAN DONOR LEAVE
DWD 226.01 Definitions and scope.
DWD 226.02 When and how leave taken.
DWD 226.03 Substituting leave.
DWD 226.031 Consecutive leave.
DWD 226.04 Continuation of insurance.
DWD 226.05 Time to commence administrative proceedings.
DWD 226.07 Complainant's duty to respond to correspondence from the department.
DWD 226.08 Notification of respondent.
DWD 226.09 Preliminary review of complaints.
DWD 226.10 Investigations.
DWD 226.11 Initial determination.
DWD 226.12 Appeal of initial determination of no probable cause.
DWD 226.13 Private settlement and conciliation.
DWD 226.14 Dismissal of complaint for lack of jurisdiction or other procedural basis following certification to hearing.
DWD 226.15 Notice of hearing.
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.
