Chapter 40

40.285(6) (6) Refunds. Except as provided in sub. (7), if the department determines that the amount paid to the department to purchase creditable service, including any amount in a plan-to-plan transfer, is greater than the amount that is required to purchase the creditable service, as determined by the department, the department shall refund the difference. The department shall pay any refund to the participant, up to the amount received from the participant. Any remaining amount shall be returned to the applicable account in the trust fund for transfers under sub. (5) (a) or to the trustee of a plan which was the source of a plan-to-plan transfer under sub. (5) (b). When more than one plan-to-plan transfer occurs, the department may determine which transfer is to be refunded, in whole or part. No funds transferred to the department by a plan-to-plan transfer may be refunded to a participant.

40.285(7) (7) Limit on payment of corrections. The department may not require a participant to pay any shortfall under sub. (4) (c) or (5) (c) that is $25 or less. The department may not pay any refund under sub. (6) if the amount of the refund is $25 or less.

40.285 History History: 2003 a. 33 ss. 996 to 999, 1025; 2003 a. 320; 2005 a. 154; 2013 a. 191; 2021 a. 245.

40.285 Cross-reference Cross-reference: See also s. ETF 20.17, Wis. adm. code.

40.29 40.29 Temporary disability; creditable service.

40.29(1) (1) If a participating employee receives temporary disability compensation under s. 102.43 for any period prior to termination of employment with the participating employer which commences on or after April 30, 1980, the employee shall be:

40.29(1)(a) (a) Credited with creditable service during that period on the same basis as the employee was credited with creditable service immediately prior to the commencement of the period; and

40.29(1)(b) (b) Treated for all purposes of the Wisconsin retirement system, including, but not limited to, contributions and benefits, as having received the amount and rate of earnings the employee would have received if the disability had not occurred, including adjustments in the rate of earnings of the employee made during that period in good faith.

40.29(2) (2) Earnings and creditable service determined under sub. (1) shall be reported by the employer to the department. The employer shall pay all employer and required employee contributions payable under this section with respect to the earnings and current service except the employer may recover from the employee’s earnings paid after the employee returns to employment with the employer the amount which the employer paid on behalf of the employee which is customarily actually paid by the employee under s. 40.05 (1). The employer may not deduct the amount recoverable under this subsection from the employee’s earnings at a rate greater than 5 percent of each payment of earnings.

40.29 History History: 1981 c. 96; 1983 a. 290.

40.30 40.30 Intrastate retirement reciprocity.

40.30(1) (1) This section shall be construed as an enactment of statewide concern to encourage career public service by employees of the state, 1st class cities and counties having a population of 750,000 or more but shall not be construed to affect the authority of any 1st class city to exercise its power granted under article XI, section 3, of the constitution and chapter 441, laws of 1947, section 31 over any other provisions of any of the retirement systems established by chapter 589, laws of 1921, chapter 423, laws of 1923 or chapter 396, laws of 1937, or to affect the authority of any county having a population of 750,000 or more to exercise its power granted under chapter 405, laws of 1965, over any other provisions of the retirement system established by chapter 201, laws of 1937.

40.30(2) (2) Except as provided in sub. (7), any individual who has vested annuity benefit rights under the Wisconsin retirement system or under one of the retirement systems established by chapter 589, laws of 1921, chapter 423, laws of 1923, chapter 201, laws of 1937 or chapter 396, laws of 1937, who subsequently becomes covered by one or more of those other retirement systems, who, on or after May 11, 1990, terminates all employment covered by any of those retirement systems and who applies to have benefits begin within a 60-day period under all of those retirement systems from which the individual is entitled to receive benefits may, on a form provided by and filed with the department, elect to have retirement benefit computations and eligibility under each of those retirement systems determined as provided in this section.

40.30(3) (3) The sum of all service credited to the individual under each retirement system specified in sub. (2) shall be used in determining whether the individual has met any vesting period required for retirement benefit eligibility during any subsequent employment covered by any retirement system specified in sub. (2), but shall not be used in determining the amount of the benefit nor in determining credit for military service.

40.30(4) (4) The individual’s retirement benefits under each retirement system specified in sub. (2) shall be determined as follows:

40.30(4)(a) (a) The benefit formula used for each type of service credited to the individual shall be the benefit formula in effect for that type of service under the respective retirement system on the date on which the individual terminated all employment covered by any retirement system specified in sub. (2).

40.30(4)(b) (b) Subject to federal annual compensation limits, the final average salary or final average earnings used in the benefit formula computation for each retirement system under par. (a) shall be the individual’s final average salary or final average earnings under the respective retirement system, determined in accordance with the provisions of that retirement system based on the earnings covered by that retirement system and on all service permitted under that retirement system to be used in determining the final average salary or final average earnings, increased by the percentage increase in the average of the total wages, as determined under 42 USC 415 (b) (3) (A), between the date on which the individual terminated all employment covered by that retirement system and the date on which the individual terminated all employment covered by any of those retirement systems.

40.30(5) (5) The benefits computed under this section for each retirement system shall be in lieu of any other benefit payable by that retirement system and may not begin before the individual terminates all employment covered by any retirement system specified in sub. (2).

40.30(6) (6) The secretary may promulgate rules affecting any retirement system specified in sub. (2) to carry out the purposes of this section.

40.30(7) (7) 

40.30(7)(a) (a) Retirement benefit computations or eligibility may not be determined as provided in this section with respect to service performed by an individual under any retirement system established by chapter 589, laws of 1921, chapter 423, laws of 1923, or chapter 396, laws of 1937, or to service performed by that individual under the Wisconsin retirement system, before the date on which the governing body of the city that established the retirement system under chapter 589, laws of 1921, chapter 423, laws of 1923, or chapter 396, laws of 1937, adopts a resolution approving the application of this section to the retirement benefit computations and eligibility determinations under all of those retirement systems that it has established.

40.30(7)(b) (b) Retirement benefit computations or eligibility may not be determined as provided in this section with respect to service performed by an individual under a retirement system established by chapter 201, laws of 1937, or to service performed by that individual under the Wisconsin retirement system, before the date on which the governing body of the county that established the retirement system under chapter 201, laws of 1937, adopts a resolution approving the application of this section to the retirement benefit computations and eligibility determinations under that retirement system.

40.30(7)(c) (c) A resolution adopted under par. (a) or (b) is irrevocable. Any governing body that adopts a resolution under par. (a) or (b) shall provide the department with a copy of the resolution.

40.30 History History: 1989 a. 323; 1995 a. 81; 2013 a. 20; 2017 a. 207 s. 5.

40.31 40.31 Maximum benefit limitations.

40.31(1) (1) General limitation. The maximum retirement benefits payable to a participant in a calendar year, excluding benefits attributable to contributions subject to the limit under s. 40.32, may not exceed the maximum benefit limitation established under section 415 (b) of the Internal Revenue Code, as adjusted under section 415 (d) of the Internal Revenue Code and any applicable regulations or guidance adopted under the Internal Revenue Code, except that the limit for an individual who first became a participant before January 1, 1990, may not be less than the accrued benefits of the participant, as determined without regard to any changes to the retirement system after October 14, 1987.

40.31(3) (3) Treatment of defined benefit and defined contribution plans. For the purpose of determining whether a participant’s retirement benefits exceed the maximum retirement limitations under this section, all defined benefit plans of the employer, including defined benefit plans that are terminated, shall be treated as a single defined benefit plan and all defined contribution plans of the employer, including defined contribution plans that are terminated, shall be treated as a single defined contribution plan. The department may provide by rule additional limitations for participants who are participating in more than one retirement system.

40.31(4) (4) Division of benefits. For the purpose of determining whether a participant’s retirement benefits exceed the maximum retirement limitations under this section for a participant whose retirement benefits have been divided under s. 40.08 (1m), the participant’s retirement benefits shall be measured as if no division had occurred.

40.31 History History: 1995 a. 302; 1997 a. 237; 2013 a. 20.

40.32 40.32 Limitations on contributions.

40.32(1) (1) The sum of all employee post-tax contributions allocated to a participant’s account may not in any calendar year exceed the maximum contribution limitation established under section 415 (c) of the Internal Revenue Code, as adjusted under section 415 (d) of the Internal Revenue Code and any applicable regulations adopted by the federal department of the treasury.

40.32(2) (2) The department may provide by rule additional limitations for participants who are participating in more than one retirement system.

40.32(3) (3) Any contribution that the department receives, which is allocated to the account of a participant and which exceeds the contributions limitation under this section, may be refunded or credited as provided in s. 40.08 (6). If the department refunds any contributions that exceed the limitation under this section, the department shall first refund amounts voluntarily contributed by a participating employee as an additional contribution under s. 40.05 (1) (a) 5.

40.32 History History: 1995 a. 302; 1997 a. 237; 2011 a. 10; 2013 a. 20.

subch. III of ch. 40 SUBCHAPTER III

SOCIAL SECURITY FOR PUBLIC EMPLOYEES

40.40 40.40 State-federal agreement. The secretary may, upon receipt of a certified copy of a resolution adopted by the governing body of any employer in accordance with s. 40.41 execute on behalf of the state a modification of the state-federal agreement with the secretary of the federal department of health and human services for the inclusion of a coverage group of the employees of the employer under the OASDHI system in conformity with federal regulations. The state and each employer included under the agreement or modification of the agreement shall thereafter be bound by federal regulations.

40.40 History History: 1981 c. 96.

40.41 40.41 Coverage.

40.41(1) (1) Except as provided in sub. (6), all the employees of any employer shall be included under OASDHI through adoption of a resolution by the governing body of the employer providing for the coverage and stating the effective date of coverage. All groups covered by OASDHI, under s. 40.41, 1979 stats., prior to January 1, 1982, shall continue to be covered by OASDHI. Whenever any employer is created, the territory of which includes more than one-half of the last assessed valuation of an employer which prior to creation of the new employer had adopted a resolution under this subsection, and the employer so created assumes the functions and responsibilities of the previous employer with respect to the territory, then the employees of the employer so created shall be covered from the inception of the created employer as if a resolution had been adopted under this subsection.

40.41(2) (2) The resolution provided for in sub. (1) may specify a coverage group comprised of persons under a retirement system which is eligible under federal regulations for inclusion under the state-federal OASDHI agreement, in which case a referendum in conformity with section 218 (d) (3) of the federal social security act shall be conducted. The governor may take any and all actions which may be required in connection with such a referendum. The agreement with the secretary of health and human services may be modified to cover the coverage group.

40.41(3) (3) No agreement with the federal department of health and human services may be executed for the purpose of permitting one or more individuals to transfer by individual choice from that part of a retirement system which is composed of positions of employees who do not desire coverage under OASDHI to that part of a retirement system which is composed of positions of employees who desire OASDHI coverage.

40.41(4) (4) Except as provided in sub. (6), all state employees, all teachers, the participating employees of all participating employers under the Wisconsin retirement system and all employees who would have become a participating employee of a participating employer except for the requirement of s. 40.22 (6) shall be included under OASDHI, notwithstanding sub. (1).

40.41(5) (5) Except as provided in sub. (6), employees under any retirement system included in whole or in part under OASDHI, prior to January 1, 1982, under a referendum or a choice held in conformity with section 218 (d) (3) or 218 (d) (6) of the federal social security act, shall continue to be included under OASDHI in accordance with the results of the referendum or choice, notwithstanding sub. (1).

40.41(6) (6) The following services shall be excluded from OASDHI coverage, and subsequent modifications of the state-federal agreement shall continue to provide for their exclusion:

40.41(6)(a) (a) Services performed by persons or in positions not eligible for inclusion under federal regulations. Any exclusion under this paragraph shall not continue if federal regulations are subsequently modified to include the services.

40.41(6)(b) (b) Services performed by a member of a board or commission, except members of governing bodies, in a position or office which does not normally require actual performance of duty for at least 600 hours in each calendar year. For purposes of this paragraph, a “board” or “commission” is a body referred to in the statutes as a board or commission.

40.41(6)(c) (c) Service performed in the employ of a school, college or university, if the service is performed by a student who is enrolled and regularly attending classes at the school, college or university.

40.41(6)(d) (d) Services of an employee whose participating employment in a position covered by a specific retirement system is not covered by OASDHI by reason of eligibility for a choice provided by statute prior to January 1, 1982, but only with respect to services in a position covered by that retirement system.

40.41(6)(e) (e) Services in police and fire fighter positions under a retirement system except:

40.41(6)(e)1. 1. If the services were covered under the federal OASDHI system under this section prior to the effective date of the retirement system coverage.

40.41(6)(e)2. 2. If the services have been covered under the federal OASDHI system under section 218 (m) of the federal social security act.

40.41(6)(f) (f) Services in a position eligible for participation in the Wisconsin retirement system only by virtue of s. 40.22 (2m). This exclusion does not apply to any employee who is a teacher, who is a participating employee in the Wisconsin retirement system or whose employer has adopted a resolution under sub. (1).

40.41 History History: 1981 c. 96; 1987 a. 372; 1989 a. 13; 1999 a. 9.

subch. IV of ch. 40 SUBCHAPTER IV

HEALTH AND LONG-TERM CARE BENEFITS

40.51 40.51 Health care coverage.

40.51(1) (1) The procedures and provisions pertaining to enrollment, premium transmitted and coverage of eligible employees for health care benefits shall be established by contract or rule except as otherwise specifically provided by this chapter.

40.51(2) (2) Except as provided in subs. (10), (10m), (11) and (16), any eligible employee may become covered by group health insurance by electing coverage within 30 days of being hired, to be effective as of the first day of the month that first occurs during the 30-day period, or by electing coverage prior to becoming eligible for employer contribution towards the premium cost as provided in s. 40.05 (4) (a) to be effective upon becoming eligible for employer contributions. An eligible employee who is not insured, but who is eligible for an employer contribution under s. 40.05 (4) (ag) 1., may elect coverage prior to becoming eligible for an employer contribution under s. 40.05 (4) (ag) 2., with the coverage to be effective upon becoming eligible for the increase in the employer contribution. Any employee who does not so elect at one of these times, or who subsequently cancels the insurance, shall not thereafter become insured unless the employee furnishes evidence of insurability satisfactory to the insurer, at the employee’s own expense or obtains coverage subject to contractual waiting periods. The method to be used shall be specified in the health insurance contract.

40.51(2m) (2m) 

40.51(2m)(a) (a) In addition to the restriction under par. (b), neither a domestic partner of an eligible employee nor a stepchild of a current domestic partnership may be covered under a group health insurance plan under this subchapter.

40.51(2m)(b) (b) If an eligible employee is divorced or was a domestic partner in a dissolved domestic partnership, the eligible employee may not enroll a new spouse in a group health insurance plan under this subchapter until 6 months have elapsed since the date of the divorce or dissolved domestic partnership.

40.51(3) (3) The health insurance contract shall establish provisions by which an insured employee or dependents may continue group coverage or convert group coverage to a nongroup policy which, at a minimum, comply with s. 632.897.

40.51(4) (4) The group insurance board shall establish provisions for the continuance of insurance coverage which shall, at a minimum, comply with s. 632.897.

40.51(5) (5) The health insurance contract shall comply with s. 632.897.

40.51(6) (6) This state shall offer to all of its employees at least 2 insured or uninsured health care coverage plans providing substantially equivalent hospital and medical benefits, including a health maintenance organization or a preferred provider plan, if those health care plans are determined by the group insurance board to be available in the area of the place of employment and are approved by the group insurance board. The group insurance board shall place each of the plans into one of 3 tiers established in accordance with standards adopted by the group insurance board. The tiers shall be separated according to the employee’s share of premium costs.

40.51(7) (7) 

40.51(7)(a) (a) Any employer, other than the state, including an employer that is not a participating employer, may offer to all of its employees a health care coverage plan through a program offered by the group insurance board. Notwithstanding sub. (2) and ss. 40.05 (4) and 40.52 (1), the department may by rule establish different eligibility standards or contribution requirements for such employees and employers. Beginning on January 1, 2012, except as otherwise provided in a collective bargaining agreement under subch. IV of ch. 111 and except as provided in par. (b), an employer may not offer a health care coverage plan to its employees under this subsection if the employer pays more than 88 percent of the average premium cost of plans offered in any tier with the lowest employee premium cost under this subsection.

40.51(7)(b) (b)

40.51(7)(b)1. 1. A municipal employer shall pay, on behalf of a nonrepresented law enforcement or fire fighting managerial employee or a nonrepresented managerial employee described in s. 111.70 (1) (mm) 2., who was initially employed by the municipal employer before July 1, 2011, the same percentage under par. (a) that is paid by the municipal employer for represented law enforcement or fire fighting personnel or personnel described in s. 111.70 (1) (mm) 2. who were initially employed by the municipal employer before July 1, 2011.

40.51(7)(b)2. 2. A municipal employer shall pay, on behalf of a represented law enforcement or fire fighting employee, who was initially employed by the municipal employer before July 1, 2011, and who on or after July 1, 2011, became employed in a nonrepresented law enforcement or fire fighting managerial position with the same municipal employer, or a successor municipal employer in the event of a combined department that is created on or after July 1, 2011, the same percentage under par. (a) that is paid by the municipal employer for represented law enforcement or fire fighting personnel who were initially employed by the municipal employer before July 1, 2011.

40.51(8) (8) Every health care coverage plan offered by the state under sub. (6) shall comply with ss. 631.89, 631.90, 631.93 (2), 631.95, 632.72 (2), 632.722, 632.729, 632.746 (1) to (8) and (10), 632.747, 632.748, 632.798, 632.83, 632.835, 632.85, 632.853, 632.855, 632.861, 632.867, 632.87 (3) to (6), 632.885, 632.89, 632.895 (5m) and (8) to (17), and 632.896.

40.51(8m) (8m) Every health care coverage plan offered by the group insurance board under sub. (7) shall comply with ss. 631.95, 632.722, 632.729, 632.746 (1) to (8) and (10), 632.747, 632.748, 632.798, 632.83, 632.835, 632.85, 632.853, 632.855, 632.861, 632.867, 632.885, 632.89, and 632.895 (11) to (17).

40.51(9) (9) Every health maintenance organization and preferred provider plan offered by the state under sub. (6) shall comply with s. 632.87 (2m).

40.51(10) (10) Beginning on July 1, 1988, any eligible employee, as defined in s. 40.02 (25) (b) 11., may become covered by group health insurance by electing coverage within 60 days after the date on which he or she ceases to be a participating employee, and by paying the cost of the required premiums, as provided in s. 40.05 (4) (ad). Any eligible employee who does not so elect at the time specified, or who later cancels the insurance, shall not thereafter become insured unless the employee furnishes evidence of insurability satisfactory to the insurer, at the employee’s expense or obtains coverage subject to contractual waiting periods, and pays the cost of the required premiums, as provided in s. 40.05 (4) (ad). The method of payment shall be specified in the health insurance contract.

40.51(10m) (10m) Any eligible employee, as defined in s. 40.02 (25) (b) 6e. and 6g., may become covered under any health care coverage plan offered under sub. (6), without furnishing evidence of insurability, by submitting to the department, on a form provided by the department and within 30 days after the date on which the department receives the employee’s application for a retirement annuity or for a lump sum payment under s. 40.25 (1), an election to obtain the coverage, by obtaining coverage subject to contractual waiting periods and by paying the cost of the required premiums, as provided in s. 40.05 (4) (ad).

40.51(11) (11) An eligible state employee who elects insurance coverage with a county under s. 978.12 (6) may not elect coverage under this section.

40.51(12) (12) Every defined network plan, as defined in s. 609.01 (1b), and every limited service health organization, as defined in s. 609.01 (3), that is offered by the state under sub. (6) shall comply with ch. 609.

40.51(13) (13) Every defined network plan, as defined in s. 609.01 (1b), and every limited service health organization, as defined in s. 609.01 (3), that is offered by the group insurance board under sub. (7) shall comply with ch. 609.

40.51(16) (16) Beginning on the date specified by the department, but not earlier than March 20, 1992, and not later than July 1, 1992, any eligible employee, as defined in s. 40.02 (25) (b) 6m., may elect coverage under any health care coverage plan offered under sub. (6) by furnishing, at the employee’s expense, evidence of insurability satisfactory to the insurer or by obtaining coverage subject to contractual waiting periods, and by paying the cost of the required premiums, as provided in s. 40.05 (4) (ad). The method to be used shall be specified in the health insurance contract.

40.51 History History: 1981 c. 96; 1983 a. 27; 1985 a. 29; 1987 a. 27, 107, 356; 1987 a. 403 s. 256; 1989 a. 31, 93, 121, 129, 182, 201, 336, 359; 1991 a. 39, 70, 113, 152, 269, 315, 1993 a. 450, 481; 1995 a. 289; 1997 a. 27, 155, 202, 237, 252; 1999 a. 32, 95, 115, 155; 2001 a. 16, 38, 104; 2003 a. 33; 2005 a. 194; 2007 a. 36; 2009 a. 14, 28, 146, 218, 346; 2011 a. 10, 32, 133, 260; 2013 a. 186; 2015 a. 55; 2017 a. 59; 2019 a. 185; 2021 a. 9; 2023 a. 91.

40.51 Annotation Monies appropriated to the Public Employee Trust Fund are not “state funds”; the legislature may not restrict the use of those funds by a statute governing the use of “state or local funds.” The restrictions on the use of “state and local” funds for abortions under s. 20.927 do not apply to health plans offered under this section. OAG 1-95

40.51 Annotation Under sub. (7) (a) and s. 40.03 (6) (a) 2., the board may offer any group insurance plan on a self–insured basis, and a municipal employer may offer a health care coverage plan through a program offered by the group insurance board. Applying these sections as written, a municipal employer may offer a self-insured plan if offered by the Board. Article VIII, section 3 of the Wisconsin Constitution poses no bar because offering self-insured plans does not extend the state’s credit. OAG 3-17.

40.513 40.513 Payment of stipend in lieu of health care coverage for state employees.

40.513(1) (1) Subject to sub. (3), a state employee who is eligible to receive health care coverage under s. 40.51 (6) may elect not to receive that coverage and instead be paid an annual stipend equal to $2,000 if all of the following occur:

40.513(1)(a) (a) The employee is eligible for an employer contribution under s. 40.05 (4) (ag).

40.513(1)(b) (b) The employee makes the election on a form provided by the department.

40.513(1)(c) (c) The employee makes the election within 30 days of being hired or during any applicable enrollment period established by the department. If the employee makes the election within 30 days of being hired, the employee may not receive health care coverage under s. 40.51 (6) during the calendar year in which the election is made. If the employee makes the election during any annual applicable enrollment period established by the department, the employee may not receive health care coverage under s. 40.51 (6) during the succeeding calendar year.

40.513(2) (2) A stipend paid to an employee under sub. (1) shall be paid from the appropriation account that would otherwise have been used to pay the employer contribution toward premium payments under s. 40.05 (4) (ag) for that employee. If an employee makes the election within 30 days of being hired, the employer shall prorate the $2,000 stipend according to the remaining number of months in the calendar year in which the election is made.