Chapter 321

321.62(18)(a) (a) In any action or proceeding under this section, a certificate signed by the adjutant general or a person designated by the adjutant general as to the period of state active duty of a service member shall be evidence as to any of the following facts unless shown to be incorrect:

321.62(18)(a)1. 1. That the service member named has been in state active duty.

321.62(18)(a)2. 2. The period of the state active duty, including the date the service member was ordered into state active duty.

321.62(18)(a)3. 3. The monthly pay received by the service member in state active duty at the time the certificate was issued.

321.62(18)(a)4. 4. If the service member died while in state active duty, the date and the place where he or she died.

321.62(18)(b) (b) The adjutant general shall provide the certificate under par. (a) upon request of the service member or of a person acting on behalf of the service member or his or her estate, and any certificate so provided shall be evidence of the facts stated in the certificate and of the authority of the signer to issue the certificate unless shown to be incorrect.

321.62(18)(c) (c) When a service member in state active duty has been reported missing to the department, the service member shall be presumed to continue in state active duty until accounted for, and no period limited under this section which begins or ends with the death of a service member shall begin or end until the death of the service member is determined by the department or by a court.

321.62(19) (19) Interlocutory orders. A court may revoke, modify, or extend any interlocutory order made by the court under this section, upon the court’s own motion or on the motion of a party, upon such notice to the parties as the court may require.

321.62(20) (20) Stay of enforcement of obligations or liabilities.

321.62(20)(a) (a) A service member may, at any time during his or her period of state active duty, or within 180 days after that duty ends, apply to a court for relief with respect to any obligation or liability incurred by the service member before his or her period of state active duty. The court, after appropriate notice and hearing, may grant the following relief unless the court determines that the ability of the service member to comply with the terms of the obligation or liability has not been materially affected by his or her state active duty:

321.62(20)(a)1. 1. In the case of an obligation payable in installments under a contract for the purchase of real estate, or secured by a mortgage upon real estate, a stay of the enforcement of the obligation during the period of state active duty and, from the date of the end of the period of state active duty or from the date of requesting the relief if made after the state active duty is ended, for a period equal to the period of the remaining life of the installment contract or instrument evidencing the obligation plus a period of time equal to the period of state active duty, or any part of that combined period. The court may issue a stay under this paragraph if the service member makes payments of the balance of the principal and accumulated interest due and unpaid at the date of the end of the period of state active duty or from the date of requesting the relief, whichever is appropriate, in equal installments during the combined period and at the rate of interest as is prescribed in the contract or instrument evidencing the obligation for installments paid when due. The court may order other terms under this paragraph as are just.

321.62(20)(a)2. 2. In the case of any other obligation or liability, a stay of the enforcement of that obligation or liability during the service member’s period of state active duty and, from the date of the end of the period of state active duty or from the date of requesting the relief if made after the duty is ended, for a period equal to the period of state active duty or any part of that period. The court may issue a stay under this paragraph if the service member makes payments of the balance of the principal and accumulated interest due and unpaid at the date of the end of the period of state active duty or from the date of requesting the relief, whichever is appropriate, in equal installments during the extended period and at the rate of interest as is prescribed for the obligation or liability when due. The court may order other terms under this paragraph as are just.

321.62(20)(b) (b) When a court has granted a stay under this subsection, no penalty may accrue during the period that the terms and conditions of the stay are complied with by reason of the failure to comply with the terms or conditions of the obligation or liability in respect to which the stay was granted.

321.62(21) (21) Power of attorney extension for missing service member.

321.62(21)(a) (a) A power of attorney that was duly executed by a service member that is reported missing to the department and that designates the service member’s spouse, parent or named relative as his or her attorney-in-fact for specified, or all, purposes, and that expires after the service member is reported missing, is extended for the period that the service member is missing.

321.62(21)(b) (b) No power of attorney executed by a service member in state active duty may be extended under par. (a) if the document creating the power of attorney clearly indicates that the power granted expires on the date specified even if the service member, after the date of execution of the document, is reported missing to the department.

321.62(22) (22) Professional liability protection.

321.62(22)(a) (a)

321.62(22)(a)1. 1. If a service member who is ordered into state active duty has coverage under a professional liability insurance policy that does not cover claims filed with respect to the service member during the period of state active duty unless the premiums are paid for the coverage for that period, the insurer that provides the coverage shall suspend the service member’s coverage under the policy upon receipt of a written request from the service member to do so. The insurer may not require that premiums be paid for the suspended coverage. The insurer shall refund any premium amount already paid for coverage of the service member for the period after the coverage is suspended or shall, at the option of the service member, apply such amount to payment of any premium that becomes due upon reinstatement of the coverage.

321.62(22)(a)2. 2. Subdivision 1. does not require the suspension of coverage for any other person who has coverage under the policy and who is not a service member ordered into state active duty or relieve any person of the obligation to pay premiums for coverage that is not required to be suspended under subd. 1.

321.62(22)(b) (b)

321.62(22)(b)1. 1. Subject to subd. 2., an insurer that suspends coverage under par. (a) is not liable with respect to any claim that is based on the professional conduct, including the failure to take an action in a professional capacity, of the service member that occurs while the service member’s professional liability coverage is suspended under this subsection.

321.62(22)(b)2. 2. For purposes of subd. 1., a claim that is based on the failure of a professional to make adequate provision for the care of patients during the professional’s period of state active duty shall be considered to be based on an action or the failure to take action before the beginning of the period during which coverage is suspended under this subsection, unless professional services were provided after the date on which the suspension of coverage began.

321.62(22)(c) (c)

321.62(22)(c)1. 1. If a service member whose professional liability insurance coverage is suspended under par. (a) transmits to the insurer, within 30 days after the date on which the service member is released from state active duty, a written request for reinstatement of his or her professional liability insurance coverage, the insurer must reinstate the coverage as of the date on which the insurer receives the written request. The period for which the coverage must be reinstated may not be less than the balance of the period for which the coverage would have continued under the policy had the coverage not been suspended.

321.62(22)(c)2. 2. Upon receipt of the written request under subd. 1., the insurer shall notify the service member of the due date for paying the premium for the insurance, and the service member shall pay the premium within 30 days after receiving the notice. For the minimum period of reinstatement required under subd. 1., the insurer may not increase the amount of the premium over the amount that was chargeable before the suspension of the coverage for that period, except to the extent of any general increase in premiums charged by the insurer for the same professional liability coverage for persons similarly covered by such insurance during the period of the suspension.

321.62(22)(d) (d)

321.62(22)(d)1. 1. Any action or proceeding in any court or before any public agency based on the alleged professional negligence or other professional liability of a service member whose professional liability insurance coverage has been suspended under par. (a) shall be stayed until the end of the period of suspension if all of the following apply:

321.62(22)(d)1.a. a. The action or proceeding was commenced during the period of suspension.

321.62(22)(d)1.b. b. The action or proceeding is based on an act or omission that occurred before the date on which the period of suspension began.

321.62(22)(d)1.c. c. The professional liability insurance policy would, except for the suspension, on its face cover the alleged professional negligence or other professional liability of the service member.

321.62(22)(d)2. 2. Whenever an action or proceeding is stayed under subd. 1., the action or proceeding shall be considered to have been filed on the date on which the service member’s coverage is reinstated under par. (c) 1.

321.62(22)(d)3. 3. In any action or proceeding in which a stay may be granted under subd. 1., the period during which the professional liability insurance coverage is suspended may not be included in computing any limitations period for commencing the action or proceeding.

321.62(22)(e) (e) If a service member whose professional liability insurance coverage is suspended under par. (a) dies during the period of suspension, all of the following apply:

321.62(22)(e)1. 1. The requirement to stay any action or proceeding under par. (d) 1. terminates on the date of the service member’s death.

321.62(22)(e)2. 2. The insurer that suspended the coverage is liable for any claim for damages for the professional negligence or other professional liability of the deceased service member in the same manner and to the same extent as the insurer would be liable if the service member had died while covered by the insurance but before the claim was filed.

321.62(23) (23) Notice of benefits under this section. The department shall provide each service member a brochure explaining this section when that service member enters state active duty.

321.62 History History: 2001 a. 24, 105; 2003 a. 69; 2005 a. 149; 2007 a. 200 ss. 148 to 172; Stats. 2007 s. 321.62; 2009 a. 28; 2011 a. 143; 2015 a. 55, 195.

321.63 321.63 Local government employees or officers in federal active duty.

321.63(1) (1) A local governmental unit, as defined in s. 66.0135 (1) (c), may grant a leave of absence to any employee or officer who is inducted or who enlists in the U.S. armed forces for a period of federal active duty of not more than 5 years unless the employee is involuntarily retained for a longer period. No salary or compensation of the employee or officer shall be paid, nor claim for the salary or compensation exist, during the leave of absence, except as provided in this section. If the employee’s or officer’s salary or compensation is less in the U.S. armed forces than was paid by the local governmental unit, that governmental unit may pay the employee or officer the difference between the salary or compensation paid by the U.S. armed forces and the salary or compensation that the employee or officer was paid by the local governmental unit at the time that he or she enlisted in or was inducted into the U.S. armed forces.

321.63(2) (2) The local governmental unit may provide for safeguarding the reinstatement and pension rights, as limited in this section, of any employee or officer so inducted or enlisted.

321.63(3) (3) No employee or officer who is appointed to fill the place of any employee or officer so inducted or enlisted shall acquire permanent tenure during the period of the replacement service.

321.63(4) (4) If the leave of absence under sub. (1) is granted to an elected or appointed official or employee and the official or employee has begun federal active duty, a temporary vacancy exists and a successor may be appointed to fill the unexpired term of the official or employee, or until the official or employee returns and files an election to resume the office if the date of the filing is prior to the expiration of the term. The appointment shall be made in the manner provided for the filling of vacancies caused by death, resignation, or otherwise, except that no election need be held to fill a temporary vacancy. The appointee has all the powers, duties, liabilities, and responsibilities and shall be paid and receive the compensation and other benefits of the office or position, unless otherwise provided by the local governmental unit. Within 40 days after the termination of federal active duty, the elected or appointed official or employee, upon filing with the clerk of the local governmental unit, a statement under oath of termination and that the official or employee elects to resume the office or position, may resume the office or position for the remainder of the term for which elected or appointed. The person temporarily filling the vacancy shall cease to hold the office on the date of the filing.

321.63 History History: 2005 a. 22, 253; 2007 a. 200 s. 173; Stats. 2007 s. 321.63.

321.64 321.64 Reemployment after completion of federal active duty or service.

321.64(1) (1) 

321.64(1)(a) (a) Any person who has enlisted or enlists in or who has been or is inducted or ordered into federal active duty for 90 days or more, and any person whose services are requested by the federal government for national defense work as a civilian during a period officially proclaimed to be a national emergency or a limited national emergency, who, to perform the duty or service, has left or leaves a position, other than a temporary position, in the employ of any political subdivision of the state or in the employ of any private or other employer, shall be restored to that position or to a position of like seniority, status, pay, and salary advancement as though service toward seniority, status, pay, or salary advancement had not been interrupted by the absence, if all of the following conditions are met:

321.64(1)(a)1. 1. The person presents to the employer evidence of satisfactory completion of the period of federal active duty or federal government service, or of discharge from the U.S. armed forces under conditions other than dishonorable.

321.64(1)(a)2. 2. The person is still qualified to perform the duties of the position.

321.64(1)(a)3. 3. The person makes application for reemployment and resumes work within 90 days after completion of the federal active duty or federal government service, military or civilian, or was so discharged from the U.S. armed forces, or within 6 months after release from hospitalization for duty-connected or service-connected injury or disease.

321.64(1)(a)4. 4. The employer’s circumstances have not changed as to make it impossible or unreasonable to restore the person.

321.64(1)(a)5. 5. The federal active duty or federal government service was not for more than 5 years unless extended by law.

321.64(1)(b) (b) Except as provided in par. (c), in the event of any dispute relating to the provisions under par. (a), the person may file a complaint regarding the matter with the department of workforce development. The department of workforce development shall process any complaint made under this paragraph in the same manner as employment discrimination complaints are processed under s. 111.39.

321.64(1)(c) (c) If a dispute arises regarding a classified employee of the state relating to the provisions of par. (a), the complaint shall be filed with the administrator of the division of personnel management. A decision of the administrator of the division of personnel management in the department of administration may be reviewed under ch. 227.

321.64(2) (2) The service of any person who is or was restored to a position in accordance with sub. (1) shall be considered not to be interrupted by the absence, except for the receipt of pay or other compensation for the period of the absence and he or she shall be entitled to participate in insurance, pensions, retirement plans, or other benefits offered by the employer under established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time the person entered or was enlisted, inducted, or ordered into federal active duty or federal government service. The person whose position was restored may not be discharged from the position without cause within one year after restoration and the discharge is subject to all federal or state laws affecting any private employment and to the provisions of contracts that may exist between employer and employee. Each political subdivision shall contribute or pay all contributions of the employer to the applicable and existent pension, annuity, or retirement system as though the service of the employee had not been interrupted by federal active duty or federal government service.

321.64(3) (3) If an employer fails or refuses to comply with subs. (1) and (2), a person entitled to the benefits under subs. (1) and (2) may petition the circuit court to require the employer to comply with those subsections. Upon the filing of the petition and on reasonable notice to the employer, the court may require the employer to comply with those subsections and to compensate the person for any loss of wages or benefits suffered by reason of the employer’s action. The court shall order a speedy hearing and shall advance the case on the calendar. No fees or court costs may be taxed against a person petitioning the court under this subsection. The action commenced under this subsection against a private employer, and the trial or hearing of the action, shall be in any county in which the employment took place or in which the private employer maintains a place of business, and in all other cases shall be as provided in s. 801.50.

321.64(4) (4) No person who is appointed in the service of the state or of any political subdivision to fill the place of a person entering federal active duty or federal government service under sub. (1) shall acquire permanent tenure during the period of that replacement service.

321.64(5) (5) If the decision of the circuit court is appealed the person who petitioned the circuit court under sub. (3) need not file an appeal bond for the security for costs on the appeal.

321.64(6) (6) The restoration of classified employees of the state shall be governed by s. 230.32. The restoration of unclassified state employees shall be governed by this section.

321.64 History History: 2005 a. 22; 2007 a. 200 s. 175; Stats. 2007 s. 321.64; 2015 a. 55.

321.64 Annotation Language in subs. (1), (2), and (6) clearly expresses that unclassified state employees are protected by sub. (2). “Restoration” in sub. (6) not only refers to who must be restored to state service under sub. (1), but also to restoration rights, including those specified in sub. (2). Sub. (2) unambiguously provides that persons who have been restored under sub. (1) have the restoration rights described in sub. (2). Scocos v. State of Wisconsin Department of Veteran Affairs, 2012 WI App 81, 343 Wis. 2d 648, 819 N.W.2d 360, 11-1178.

321.64 Annotation Returning the Veteran to Work. Walther. Wis. Law. July 2006.

321.65 321.65 Reemployment rights after national guard, state defense force, or public health emergency service.

321.65(1) (1) Definitions. In this section:

321.65(1)(a) (a) “Active state service” means any of the following:

321.65(1)(a)1. 1. State active duty or active duty in the national guard under 32 USC 502 (f).

321.65(1)(a)2. 2. Active service with the state laboratory of hygiene under s. 36.25 (11) (em) for the purpose of assisting the department of health services under s. 250.042 during a state of emergency relating to public health declared by the governor under s. 323.10.

321.65(1)(a)3. 3. Active duty in the national guard of any state under an order of the governor of that state.

321.65(1)(b) (b) “Employer” means a person engaging in any activity, enterprise, or business in this state employing one or more persons on a permanent basis. “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. “Employer” also includes a successor-in-interest of a person employing an individual who has provided notice to that person under sub. (3) (a).

321.65(1)(c) (c) “Health benefit plan” has the meaning given in s. 632.745 (11).

321.65(1)(d) (d) “Qualified” means having the ability to perform the essential tasks of an employment position.

321.65(1)(e) (e) “Reasonable efforts” means, with respect to an action required by an employer under sub. (4) (a) 1., 2., 3., or 4., an action that does not place an undue hardship on the employer.

321.65(1)(f) (f) “Undue hardship” means, with respect to an action required by an employer under sub. (4) (a) 1., 2., 3., or 4., significant difficulty or expense, when considered in light of all of the following:

321.65(1)(f)1. 1. The nature and cost of the action.

321.65(1)(f)2. 2. The overall financial resources of the facility involved in providing the action, the number of persons employed at the facility, the effect of providing the action on the resources and finances of the facility, and any other impact of the action on the operation of the facility.

321.65(1)(f)3. 3. The overall financial resources of the employer, the number of persons employed by the employer, and the number, type, and location of the employer’s facilities.

321.65(1)(f)4. 4. The type of operation of the employer, including the composition, structure, and functions of the employer’s workforce, the geographic separateness from the employer of the facility involved in providing the action, and the administrative and financial relationship of the facility to the employer.

321.65(2) (2) More generous rights permitted. Nothing in this section prohibits an employer from providing employees who are ordered into active state service with reemployment rights and benefits that are more generous to the employee than the rights and benefits provided under this section.

321.65(3) (3) Reemployment rights.

321.65(3)(a) (a) Prerequisites. Subject to par. (d), any person who is absent from a position of employment because of active state service is entitled to the reemployment rights and benefits specified in this section if all of the following apply:

321.65(3)(a)1. 1. Except as provided in par. (b), the person has given advanced notice of the active state service to the person’s employer.

321.65(3)(a)2. 2. Except as provided in par. (c), the cumulative length of the absence from the position of employment and of all previous absences from a position of employment with the employer by reason of active state service or federal active duty does not exceed 5 years.

321.65(3)(a)3. 3. Except as provided in par. (f), the person reports to the employer or submits an application for reemployment to the employer as required under par. (e).

321.65(3)(a)4. 4. In the case of active state service in the national guard in this or another state or territory of the United States or the state defense force, the active state service has not been terminated under other than honorable conditions.

321.65(3)(b) (b) Notice not required. No notice is required under par. (a) 1. if the giving of that notice is precluded by military necessity or is otherwise impossible or unreasonable. A determination of military necessity for purposes of this paragraph shall be made according to rules and regulations promulgated by the adjutant general or the federal secretary of defense and is not subject to judicial review.

321.65(3)(c) (c) Length of absence limit. The periods of federal active duty described in 38 USC 4312 (c) (1) to (4) and all of the following periods of active state service are not included in calculating the 5-year period specified in par. (a) 2.:

321.65(3)(c)1. 1. Any period of active state service beyond that 5-year period that is required to complete an initial period of obligated active state service.

321.65(3)(c)2. 2. Any period of active state service for which the person, through no fault of the person’s own, was unable to obtain orders releasing the person from a period of active state service before the expiration of the 5-year period.

321.65(3)(c)3. 3. Any period of active state service that was performed to fulfill any additional training requirements determined and certified in writing by the federal secretary of the army, the federal secretary of the air force, or the adjutant general to be necessary for professional development or for completion of skill training or retraining.