Chapter 40

40.02(25)(b)7. 7. Any employee whose health insurance premiums are being paid under s. 40.05 (4) (bm).

40.02(25)(b)8. 8. Any other state employee for whom coverage is authorized under a collective bargaining agreement pursuant to subch. V of ch. 111 or under s. 230.12 or 233.10.

40.02(25)(b)9. 9. Except as provided under s. 40.51 (7), any other employee of any employer, other than the state, that has acted under s. 40.51 to make such coverage available to its employees.

40.02(25)(b)10. 10. Any participating employee who is an employee of this state and who qualifies for a disability benefit under s. 40.63 or 40.65.

40.02(25)(b)11. 11. Beginning on July 1, 1988, any retired public employee, other than a retired employee of the state, who is receiving an annuity under the Wisconsin retirement system, or any dependent of such an employee, as provided in the health insurance contract, who is receiving a continuation of the employee’s annuity, and, if eligible, is receiving medicare coverage under both part A and part B of Title XVIII of the federal social security act, 42 USC 1395 to 1395zz, and who has acted under s. 40.51 (10) to elect group health insurance coverage.

40.02(25)(bm) (bm) For the purpose of long-term care insurance, in addition to any state annuitant, any employee of the state who received a salary or wages in the previous calendar year, and any participant who was at one time employed by the state who receives a lump sum payment under s. 40.25 (1) which would have been an immediate annuity if paid as an annuity, if the employee is a resident of this state and meets all of the requirements for an immediate annuity including filing of an application, whether or not final administrative action has been taken.

40.02(25)(c) (c) For the purpose of group life insurance coverage, for participating employees and employees subject to s. 40.19 (4) of any employer, other than the state, which has acted under s. 40.70 (1) (a) to make group life insurance available to its employees the same as provided under par. (a) 1. and 3.

40.02(25)(d) (d) For the purpose of income continuation insurance coverage, and except as provided under s. 40.61 (3), for participating employees of any employer under sub. (28), other than the state, which has acted under s. 40.61 to make such coverage available to its employees.

40.02(25g) (25g) “Eligible retired public safety officer” has the meaning given in section 402 (l) (4) (B) of the Internal Revenue Code.

40.02(26) (26) “Employee” means any person who receives earnings as payment for personal services rendered for the benefit of any employer including officers of the employer. An employee is deemed to have separated from the service of an employer at the end of the day on which the employee last performed services for the employer, or, if later, the day on which the employee-employer relationship is terminated because of the expiration or termination of leave without pay, sick leave, vacation or other leave of absence. Except as provided in s. 40.82 (4), a participant receiving a differential wage payment or earnings, contributions, or service credit under sub. (15) (e) is considered an employee of the employer making the payment. A person shall not be considered an employee if a person:

40.02(26)(a) (a) Is employed under a contract involving the furnishing of more than personal services.

40.02(26)(b) (b) Is customarily engaged in an independently established trade, business or profession providing the same type of services to private individuals and organizations as is provided to the employer and whose services to a participating employer are not compensated for on a payroll of that employer, except that persons holding offices provided for by statute shall be considered employees.

40.02(26)(c) (c) Is a patient or inmate of a hospital, home or institution and performs services in the hospital, home or institution.

40.02(26g) (26g) “Employee-funded reimbursement account plan” means any of the following:

40.02(26g)(a) (a) A plan in accordance with section 125 of the Internal Revenue Code under which an employee may direct an employer to place part of the employee’s gross compensation in an account to pay for certain future expenses of the employee under section 125 of the Internal Revenue Code.

40.02(26g)(b) (b) A plan in accordance with section 132 of the Internal Revenue Code under which an employee may direct an employer to place part of the employee’s gross compensation in an account to pay for certain future expenses of the employee under section 132 of the Internal Revenue Code.

40.02(26r) (26r) “Employee-funded reimbursement account plan provider” means a person who provides administrative services related to employee-funded reimbursement account plans.

40.02(27) (27) “Employee required contribution” means the contribution made by an employee under s. 40.05 (1) (a) 1. to 4. and 7.

40.02(28) (28) “Employer” means the state, including each state agency, any county, city, village, town, school district, other governmental unit or instrumentality of 2 or more units of government now existing or hereafter created within the state, any federated public library system established under s. 43.19 whose territory lies within a single county with a population of 750,000 or more, a local exposition district created under subch. II of ch. 229, and a long-term care district created under s. 46.2895, except as provided under ss. 40.51 (7) and 40.61 (3). “Employer” does not include a local cultural arts district created under subch. V of ch. 229. Each employer shall be a separate legal jurisdiction for OASDHI purposes.

40.02(29) (29) “Employer required contribution” means the contribution made by an employer under s. 40.05 (2) (a) to (f).

40.02(30) (30) “Executive participating employee” means a participating employee in a position designated under s. 19.42 (10) (L) or 20.923 (4), (7), (8), or (9) or authorized under s. 230.08 (2) (e) during the time of employment, and also includes the president and vice presidents of the University of Wisconsin System and the chancellors and vice chancellors who are serving as deputies of all University of Wisconsin institutions, the University of Wisconsin Colleges, and the University of Wisconsin-Extension. All service credited prior to May 17, 1988, as executive service as defined under s. 40.02 (31), 1985 stats., shall continue to be treated as executive service as defined under s. 40.02 (31), 1985 stats., but no other service rendered prior to May 17, 1988, may be changed to executive service as defined under s. 40.02 (31), 1985 stats.

40.02(31) (31) “Federal annual compensation limits” means any annual compensation limit under section 401 (a) (17) of the Internal Revenue Code, as adjusted for any cost of living increases under section 401 (a) (17) (B) of the Internal Revenue Code, but only with respect to plan years beginning after December 31, 1995, and only with respect to individuals who first became participating employees in plan years beginning after December 31, 1995. This subsection shall be applied in compliance with section 401 (a) (31) of the Internal Revenue Code pursuant to any applicable federal regulations or guidance adopted under the Internal Revenue Code.

40.02(32) (32) “Federal regulations” means the provisions of section 218 of Title II of the federal social security act and applicable regulations adopted under the federal social security act.

40.02(33) (33) “Final average earnings” means:

40.02(33)(a) (a) The monthly rate of earnings, ignoring any fractions of a dollar, obtained by dividing:

40.02(33)(a)1. 1. The participant’s total earnings received or considered to be received under sub. (22) (e), (ef), or (em) and for which contributions are made under s. 40.05 (1) and (2) during the 3 annual earnings periods (excluding any period more than 3 years prior to the effective date for any participating employer) in which the earnings were the highest, subject to federal annual compensation limits; by

40.02(33)(a)2. 2. Twelve times the total amount of creditable service for the 3 periods.

40.02(33)(b) (b)

40.02(33)(b)1. 1. For a state elected official who is prohibited by law from receiving an increase in compensation during the official’s term of office and who so elects, one-twelfth of the annual salary, subject to federal annual compensation limits, which would have been payable to the participant during the last completed month in which the participant was a participating employee in such a position if the participant had not been prohibited by law from receiving an increase in salary during his or her term of office, but only with respect to service as a state elected official.

40.02(33)(b)2. 2. For a state senator who so elects, one-twelfth of the annual salary which would have been payable to the participant during the last completed month in which the participant was a participating employee in such a position if the participant had not been prohibited by law from receiving an increase in salary during part of his or her term of office, but only with respect to service as a state senator.

40.02(33)(c) (c) For a participant who makes an election under s. 40.30 (2), the monthly rate of earnings applicable under par. (a) or (b), increased as provided under s. 40.30 (4) (b) but subject to federal annual compensation limits.

40.02(35) (35) “Fund” means the public employee trust fund.

40.02(36) (36) “Governing body” means the legislature or the head of each state agency with respect to employees of that agency for the state, the common council in cities, the village board in villages, the town board in towns, the county board in counties, the school board in school districts, or the board, commission or other governing body having the final authority for any other unit of government, for any agency or instrumentality of 2 or more units of government, for any federated public library system established under s. 43.19 whose territory lies within a single county with a population of 750,000 or more, for a local exposition district created under subch. II of ch. 229 or for a long-term care district created under s. 46.2895, but does not include a local cultural arts district created under subch. V of ch. 229.

40.02(37) (37) “Health insurance” means contractual arrangements which may include, but are not limited to, indemnity or service benefits, or prepaid comprehensive health care plans, which will provide full or partial payment of the financial expense incurred by employees and dependents as the result of injury, illness or preventive medical procedures. The plans may include hospitalization, surgical and medical care, as well as ancillary items or services as determined by the group insurance board. The plans may include the type of coverage normally referred to as “major medical” insurance.

40.02(37m) (37m) “Health savings account” means a health savings account described in 26 USC 223.

40.02(37r) (37r) “High-deductible health plan” has the meaning given in 26 USC 223 (c) (2).

40.02(38) (38) “Immediate annuity” means an annuity, not including an annuity from additional contributions, which begins to accrue not later than 30 days after termination of employment.

40.02(39) (39) “Insured employee” means, for purposes of each insurance benefit plan, any eligible employee who is properly enrolled in the benefit plan.

40.02(39m) (39m) “Internal Revenue Code” means the federal Internal Revenue Code of 1986, under Title 26, USC, as amended.

40.02(39r) (39r) “Joint and survivor annuity” means an optional annuity form, described under s. 40.24 (1) (d) or a rule promulgated under s. 40.24 (1) (g), that is payable for the life of the participant and, after the death of the participant, a continuing percentage of which is payable in monthly installments to the named survivor.

40.02(40) (40) “Leave of absence” means any period during which an employee has ceased to render services for a participating employer and receive earnings and there has been no formal termination of the employer-employee relationship. For purposes of the fund every leave of absence, except a military leave or union service leave, shall terminate 3 years after it begins or, if earlier, upon the date specified by the employer in a notification to the department that the employer-employee relationship has terminated. A leave of absence is not deemed ended or interrupted by reason of resumption of active duty until the employee has resumed active performance of duty for 30 consecutive calendar days for at least 50 percent of what is considered that employee’s normal work time with that employer. For the purpose of group health insurance coverage, every leave of absence due to employee layoff which has not been terminated before 3 years have elapsed shall continue for affected insured employees until an additional 2 years elapse or until sick leave credits used to pay health insurance premiums are exhausted, whichever occurs first.

40.02(40m) (40m) “Long-term care insurance” means insurance that primarily provides coverage for care that is provided in institutional and community-based settings and that is convalescent or custodial care or care for a chronic condition or terminal illness. The term does not include a medicare supplement policy, as defined in s. 600.03 (28r), a medicare replacement policy, as defined in s. 600.03 (28p), or a continuing care contract, as defined in s. 647.01 (2).

40.02(41) (41) “Milwaukee teacher” means any teacher employed by the board of school directors of the city of Milwaukee.

40.02(41m) (41m) “Monthly salary” means the gross amount paid to a participant making a claim under s. 40.65, at the time he or she becomes disabled within the meaning of s. 40.65 (4), by the employer in whose employ the injury occurred or the disease was contracted. Overtime pay may not be considered part of an employee’s monthly salary unless the employee received it on a regular and dependable basis.

40.02(41n) (41n) “Municipal employer” has the meaning given in s. 111.70 (1) (j).

40.02(41r) (41r) “Named survivor” means the natural person designated by a participant on an application for a joint and survivor annuity or pursuant to a request under s. 40.24 (4) to receive, after the death of the participant, a continuing percentage of the annuity payable in monthly installments. A participant may not designate more than one natural person as the named survivor for a joint and survivor annuity. A participant’s designation of a named survivor on an application for a joint and survivor annuity is irrevocable after the deadline specified under s. 40.24 (4). Pursuant to rules promulgated by the department, a named survivor may designate one or more beneficiaries to receive any remaining guaranteed monthly installments that are unpaid at the time of the named survivor’s death.

40.02(42) (42) “Normal retirement date” means:

40.02(42)(a) (a) The date on which a participant attains the age of 55 years for a protective occupation participant who terminates covered employment before July 1, 1990, or, for a protective occupation participant who terminates covered employment on or after July 1, 1990, the date on which the participant attains the age of 54 years if the participant has accumulated less than 25 years of creditable service or the age of 53 years if the participant has accumulated at least 25 years of creditable service, except as provided in par. (g).

40.02(42)(b) (b) The date on which a participant attains the age of 62 years for a participant who was an elected official or an executive participating employee before January 1, 2017, except as provided in par. (g).

40.02(42)(d) (d) The date on which a participant attains the age of 65 years for any participant not subject to par. (a) or (b), except as provided in par. (g).

40.02(42)(g) (g) The date applicable to the participant under pars. (a) to (d) at the earlier of either the date it is necessary to make any determination or to take any action relative to the participant for purposes of the retirement system or the date of termination of employment of the participant, notwithstanding the fact that a participant may have been in one or more different employment categories at any previous time except for the purpose of calculating an annuity. For the purpose of calculating an annuity, the normal retirement date for each category provided by pars. (a) to (d) applies to service which is subject to that category. For the purpose of calculating a retirement benefit for an executive participating employee qualifying only under s. 40.02 (30) (b), 1985 stats., a normal retirement date of the date the executive participating employee attains the age of 62 years shall be applied to creditable service of the executive participating employee for which par. (d) would otherwise apply except the number of creditable service years to which that normal retirement date shall be applied under this paragraph may not exceed the number of executive service years of the executive participating employee.

40.02(43) (43) “OASDHI” means federal old-age, survivors, disability and health insurance under Titles II and XVIII of the federal social security act.

40.02(44) (44) “OASDHI benefit” means the primary or disability insurance monthly benefit amount for which a person is eligible, or for which a participant will be eligible upon attaining the lowest age at which old-age benefits are payable under the OASDHI program.

40.02(45) (45) “Participant” means any person included within the provisions of the Wisconsin retirement system by virtue of being or having been a participating employee whose account has not been closed under s. 40.25 (1) or (2).

40.02(46) (46) “Participating employee” means an employee who is currently in the service of, or an employee who is on a leave of absence from, a participating employer under the Wisconsin retirement system and who has met the requirements for inclusion within the provisions of the Wisconsin retirement system under s. 40.22.

40.02(47) (47) “Participating employer” means, for purposes of each of the respective benefit plans, any employer subject to the provisions of that plan under this chapter.

40.02(48) (48) 

40.02(48)(a) (a) “Protective occupation participant” means any participant whose principal duties are determined by the participating employer, or, subject to s. 40.06 (1) (dm), by the department head in the case of a state employee, to involve active law enforcement or active fire suppression or prevention, provided the duties require frequent exposure to a high degree of danger or peril and also require a high degree of physical conditioning.

40.02(48)(am) (am) “Protective occupation participant” includes any participant whose name is certified to the fund as provided in s. 40.06 (1) (d) and (dm) and who is any of the following:

40.02(48)(am)1. 1. A conservation warden.

40.02(48)(am)2. 2. A conservation patrol boat captain.

40.02(48)(am)3. 3. A conservation patrol boat engineer.

40.02(48)(am)4. 4. A conservation pilot.

40.02(48)(am)5. 5. A conservation patrol officer.

40.02(48)(am)6. 6. A forest fire control assistant.

40.02(48)(am)7. 7. A member of the state traffic patrol.

40.02(48)(am)8. 8. A state motor vehicle inspector.

40.02(48)(am)9. 9. A police officer.

40.02(48)(am)10. 10. A fire fighter.

40.02(48)(am)11. 11. A sheriff.

40.02(48)(am)12. 12. An undersheriff.

40.02(48)(am)13. 13. A deputy sheriff.

40.02(48)(am)14. 14. A state probation and parole officer.

40.02(48)(am)15. 15. A county traffic police officer.

40.02(48)(am)16. 16. A state forest ranger.

40.02(48)(am)17. 17. A fire watcher employed at Wisconsin veterans facilities.

40.02(48)(am)18. 18. A state correctional-psychiatric officer.

40.02(48)(am)19. 19. A special agent employed by the department of revenue who is authorized to act under s. 73.031.

40.02(48)(am)20. 20. A special criminal investigation agent in the department of justice.

40.02(48)(am)21. 21. An assistant or deputy fire marshal.

40.02(48)(am)22. 22. A person employed under s. 60.553 (1), 61.66 (1), or 62.13 (2e) (a).

40.02(48)(am)23. 23. A county jailer.

40.02(48)(b) (b) Each determination of the status of a participant under this subsection shall include consideration, where applicable, of the following factors:

40.02(48)(b)1. 1. A “police officer” is any officer, including the chief, or employee of a police department, except one whose principal duties are those of a telephone operator, clerk, stenographer, machinist or mechanic and whose functions do not clearly fall within the scope of active law enforcement even though such an employee is subject to occasional call, or is occasionally called upon, to perform duties within the scope of active law enforcement. Police officer includes any person regularly employed and qualifying as a patrol officer or a person of equal or higher rank, even if temporarily assigned to other duties.

40.02(48)(b)2. 2. A “fire fighter” is any officer, including the chief, or employee of a fire department, except one whose principal duties are those of a telephone operator, clerk, stenographer, machinist or mechanic and whose functions do not clearly fall within the scope of active fire suppression or prevention even though such an employee is subject to occasional call, or is occasionally called upon, to perform duties within the scope of active fire suppression or prevention. Fire fighter includes any person regularly employed and qualifying as a fire fighter, hose handler or a person of equal or higher rank, even if temporarily assigned to other duties.

40.02(48)(b)3. 3. A “deputy sheriff” or a “county traffic police officer” is any officer or employee of a sheriff’s office or county traffic department, except one whose principal duties are those of a telephone operator, clerk, stenographer, machinist or mechanic and whose functions do not clearly fall within the scope of active law enforcement even though such an employee is subject to occasional call, or is occasionally called upon, to perform duties within the scope of active law enforcement. Deputy sheriff or county traffic police officer does not include a county jailer, but does include any person regularly employed and qualifying as a deputy sheriff or county traffic police officer, even if temporarily assigned to other duties.

40.02(48)(b)4. 4. A “member of the state traffic patrol” includes one division administrator in the department of transportation who is counted under s. 230.08 (2) (e) 12. and whose duties include supervising the state traffic patrol, if the division administrator is certified by the law enforcement standards board under s. 165.85 (4) (a) 1. as being qualified to be a law enforcement officer.

40.02(48)(b)5. 5. A “county jailer” is an employee of a county whose principal duties involve supervising, controlling, or maintaining a jail or house of correction or the persons confined in a jail, as assigned by the sheriff under s. 59.27 (1), or the persons confined in a house of correction, as assigned by a county board of supervisors under s. 303.17, regardless of whether the employee has been sworn regarding his or her duties or whether the employee serves on a full-time basis, provided the department receives notification of the participant’s name as provided in s. 40.06 (1) (d) and (dm). Notwithstanding par. (a), an employer may classify an employee who is a county jailer as a protective occupation participant under par. (am) 23. without making a determination that the principal duties of the employee involve active law enforcement or active fire suppression or prevention. A determination under this subdivision may not be appealed under s. 40.06 (1) (e) or (em). A county jailer is not a protective occupation participant if he or she so elects with the employer under s. 59.52 (8m) or 2023 Wisconsin Act 4.

40.02(48)(bm) (bm) “Protective occupation participant” includes any participant who is an emergency medical services practitioner, as defined in s. 256.01 (5), if the participant’s employer classifies the participant as a protective occupation participant and the department receives notification of the participant’s name as provided in s. 40.06 (1) (d) and (dm). Notwithstanding par. (a), an employer may classify a participant who is an emergency medical services practitioner as a protective occupation participant without making a determination that the principal duties of the participant involve active law enforcement or active fire suppression or prevention. A determination under this paragraph may not be appealed under s. 40.06 (1) (e) or (em), but a determination under this paragraph regarding the classification of a state employee is subject to review under s. 40.06 (1) (dm). Notwithstanding sub. (17) (d), each participant who is classified as a protective occupation participant under this paragraph on or after January 1, 1991, shall be granted creditable service as a protective occupation participant for all covered service as an emergency medical services practitioner that was earned on or after the date on which the department receives notification of the participant’s name as provided in s. 40.06 (1) (d) and (dm), but may not be granted creditable service as a protective occupation participant for any covered service as an emergency medical services practitioner that was earned before that date.