Chapter DWD 226

DWD 226.24   Decision and order.

DWD 226.25   Appeals.

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 DWD 226.01 Definitions and scope.

DWD 226.01(1) (1) When used in this chapter or in s. 103.11, Stats.:

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)(c) (c) “Administrative law judge” means the examiner appointed to conduct hearings under s. 103.11 (12), Stats.

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(1)(m) (m) “Week” as used in s. 103.11 (3) (b), Stats., means 7 consecutive days.

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 DWD 226.02 When and how leave taken.

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) (3) 

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) (4) 

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)(a) (a) Provide the notice in writing.

DWD 226.02(6)(b) (b) Identify the planned dates of leave.

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 DWD 226.03 Substituting leave.

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(2) (2) Leave substituted for leave available under this section shall be calculated as specified in s. DWD 226.02 (1).

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(2) (2) The employer consents to the extension.

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 DWD 226.04 Continuation of insurance.

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 DWD 226.06 Complaints.

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) (2) Where to file 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(2)(b) (b) A complaint filed by facsimile transmission shall conform with the requirements of s. DWD 226.26 (1).

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: [e-mail].

DWD 226.06 Note 2. Equal Rights Division, 819 North 6th Street, Milwaukee, WI 53203. Facsimile: 414-227-4084. Email address: [e-mail]. 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:

DWD 226.06(3)(a) (a) The name and address of the complainant.

DWD 226.06(3)(b) (b) The name and address of the respondent.

DWD 226.06(3)(c) (c) A concise statement of the facts, including pertinent dates, constituting the alleged prohibited action.

DWD 226.06(4) (4) Assistance by the department. The department shall, upon request, provide appropriate assistance in completing and filing complaints.

DWD 226.06(5) (5) Amendment of complaint. A complaint may be amended, subject to the approval of the department, except that a complaint may not be amended less than 10 days before hearing or by a date established by the administrative law judge unless good cause is shown for the failure to amend the complaint before that time. If the complaint is amended before the issuance of an initial determination, the department shall investigate the allegations of the amended complaint. After an initial determination has been issued, amendments may be allowed by the administrative law judge only for claims which relate back to the original complaint for statute of limitation purposes. If an amendment is approved after the case has been certified to hearing, the case may be remanded to the bureau of investigations to conduct an investigation and issue an initial determination as to whether probable cause exists to believe that the respondent has violated s. 103.11, Stats., as alleged in the amended complaint or continue to hearing if both parties agree to proceed to hearing with the issues in the amended complaint. An amended complaint shall be dismissed if it does not meet the requirements of s. DWD 226.09 (1).

DWD 226.06(6) (6) Withdrawal of complaint. A complaint may be withdrawn at any time. A request for a withdrawal shall be in writing and shall be signed by the complainant or by the complainant’s duly authorized representative. Upon the filing of a request for a withdrawal, the department shall dismiss the complaint by written order. Such dismissal shall be with prejudice unless otherwise expressly stated in the order.

DWD 226.06 History History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction in (2) (a) made under s. 35.17, Stats., Register June 2022 No. 798.

DWD 226.07 DWD 226.07 Complainant’s duty to respond to correspondence from the department. The department may dismiss the complaint if the complainant fails to respond to the department within 20 days from the date of mailing of any correspondence from the department concerning the complaint, provided that correspondence was sent by certified mail, return receipt requested, to the last known address of the complainant. The department may send certified or regular mail to determine whether the complainant wishes to continue pursuing the case or for other reasons determined to be appropriate by the department. If regular mail is not returned to the department, there is a presumption that it was received by the complainant.

DWD 226.07 History History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.