OSHA Issues Guidance on Reporting Work-Related COVID-19 Hospitalizations and Deaths

On September 30, 2020, OSHA published new guidance on employers’ obligations to report employee in-patient hospitalizations and fatalities resulting from work-related cases of COVID-19.

Employers must report hospitalizations with 24 hours: In order to be reportable, an employee’s in-patient hospitalization due to COVID-19 must occur within 24 hours of exposure to the virus at work. If the hospitalization occurs later, it is not reportable. Furthermore, an employer’s duty to report is triggered when the employer knows both that the employee has been hospitalized and that the reason for the hospitalization was COVID-19 exposure at work within 24 hours prior to hospitalization. Once the employer knows both, it has 24 hours to report the hospitalization.

Employers must report fatalities within 8 hours: In order to be reportable, a fatality caused by COVID-19 must occur within 30 days of exposure to the virus in the workplace. If the death occurs later, it is not reportable. Furthermore, an employer’s duty to report arises when the employer knows both that the employee has died of COVID-19 and that the cause of death was work-related exposure to the virus within the prior 30 days.  Once the employer knows both, it has 8 hours to report the fatality.

Notably, the guidance does not specify how employers should decide whether or not a COVID-19 exposure was work-related for purposes of reporting hospitalizations or fatalities. Therefore, employers are left to follow prior OSHA guidance issued in May 2020 as to “whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case” of COVID-19.

An employer may report a work-related COVID-19 hospitalization or death in any of the following ways:

  • Calling the nearest OSHA office
  • Calling the OSHA 24-hour hotline at 1-800-321-OSHA (6742); or
  • Reporting online.

OSHA-covered employers must record all work-related confirmed cases of COVID-19.  See Lake Effect’s prior blog on this topic.

Lake Effect is here to answer your questions about OSHA reporting obligations relating to COVID-19. For a deeper dive into this issue, contact us at info@le-hrlaw.com or 1-844-333-5253. We continue to monitor important legal and HR developments, as well as COVID-related updates, from federal, state, and local authorities. Please keep watching our blogs and emails for the latest information.

Lake Effect is committed to helping your organization maximize its workplace potential, ensuring compliance while preserving your unique culture.

UI Notice Required at Time of Separation of Employment

Beginning November 2, 2020, Wisconsin employers must notify employees at the time of separation from employment of the availability of Unemployment Insurance (UI) benefits. Notice of unemployment rights can be given to employees by email, text message, letter, or by providing the DWD printed poster in person or by mail.

The content of the notice should include when and how an employee can file for unemployment, unemployment resources, and UI contact information. The DWD provides suggested language to include in end of employment communications to employees, including the digital poster. We encourage employers to use the suggested language and the customizable digital poster. This poster needs to be posted at all times in your workplace or electronically in the case of remote workers.

Note that providing the notice does not necessarily mean that employees will meet the requirements of the Wisconsin UI eligibility laws and/or receive benefits.

Lake Effect is here to answer your questions about employee onboarding, offboarding, or compliance with applicable state and federal employment laws. We continue to monitor important legal and HR developments, as well as COVID-related updated from federal, state, and local authorities. Please keep watching our blogs and emails from us for important legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Wisconsin Judge Reinstates Emergency Order Restricting Indoor Gatherings

On October 19, 2020, Barron County Circuit Judge James C. Babler reinstated Emergency Order #3, which limits indoor gatherings throughout Wisconsin to no more than 25% of the total occupancy limit for the room or building. DHS Secretary Andrea Palm’s Emergency Order #3, effective from October 8 until November 6, 2020, exempts schools, polling locations, political rallies, churches, and some businesses, such as grocery stores. On October 14, 2020, a Sawyer County district court had temporarily blocked the Order in response to a lawsuit from state Tavern League members, who argued that Secretary Palm did not have authority to pass the statewide limitations.

Immediately following Judge Babler’s decision to uphold the statewide restrictions, Governor Evers issued a press release stating, “This critically important ruling will help us prevent the spread of this virus by restoring limits on public gatherings. This crisis is urgent.” See Lake Effect’s prior blog on Emergency Order #3.
As a reminder, employers must comply with any local public health orders such as those in Dane County that impose stricter requirements than those set forth in Emergency Order #3. See Lake Effect’s summary of local health orders.

The Lake Effect team will continue to monitor important COVID-related updates such as these from federal, state, and local authorities. Please keep watching for blogs and emails from us for important legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Statewide Limits on Indoor Public Gatherings

On October 14, 2020, a Sawyer County district court temporarily blocked Governor Evers administration’s Emergency Order #3, which limits indoor public gatherings statewide. The Court will hear arguments on Monday, October 19, to decide whether to issue a permanent injunction that would permanently block enforcement of Emergency Order #3, unless a higher court overrules that decision.

Earlier this week on October 12, a Polk County district court upheld Governor Evers’ Executive Order #90, extending the state’s public health emergency declaration, and Emergency Order #1, requiring all individuals in Wisconsin over the age of four to wear face coverings when in an enclosed space with people outside their household. That order was extended and is in effect until November 21.

As a reminder, employers must comply with any local public health orders such as those in Dane County that impose stricter requirements than those set forth in the statewide orders.

The Lake Effect team will continue to monitor important COVID-related updates such as these from federal, state, and local authorities. Please keep watching for blogs and emails from us for important legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Review Employee Voting Rights As Elections Near

As we near the end of October, federal, state, and local elections are right around the corner. It is a good time for employers to review relevant policies and legal obligations towards employees who seek time off to vote or otherwise participate in the election process.

Under Wisconsin law, an employee who is entitled to vote in a public election must be given up to three (3) consecutive hours off work while the polls are open. An employee who plans to take time off to vote must notify their employer before election day, and the employer may designate the time of day for the absence (for example, at the start or end of a shift or work day). An employer need not pay an employee for time off to vote, but it may not penalize the employee in any way for taking that time off. Wis. Stat. §6.76.

An employee who wishes to participate in the election process as a registered poll worker has no similar right to time off work under Wisconsin law. However, employers may permit employees to take available paid or unpaid time off, such as vacation, paid time off, or community service time, for that purpose. Employers should take steps to ensure consistent treatment of all employees who request time off for election-related reasons.

In addition, employers should review any applicable collective bargaining agreements, handbooks, and internal policies that may provide greater rights than those set forth in Wisconsin’s voting rights statute.

Finally, employers should keep in mind that other states may impose different or additional requirements with regards to employee voting. A number of states, such as Illinois, require employers to provide paid time off for employees to vote. Other states have more stringent notice provisions. For example, New York requires employers to post a notice within 10 days of each election informing employees of their rights regarding voting time.

If you have questions about election-related issues as they impact your workforce inside or outside of Wisconsin, the team at Lake Effect HR & Law is happy to assist. Lake Effect continues to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching for blogs and emails from us for important legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

WI Emergency Order #3 – Statewide Limits on Indoor Public Gatherings

Indoor public gatherings are limited statewide starting on October 8, 2020 at 8:00 a.m. and ending on November 6, 2020 under Emergency Order #3. The Wisconsin Department of Health Services (DHS) Secretary-designee Andrea Palm issued the order on October 6, 2020.

Emergency Order #3 restricts “public gatherings” to 25% or less of the established indoor capacity limit of a building or room. This applies to any business that is open to the public, including restaurants, retail stores, and office lobbies. If the building or room has no capacity limit (e.g., a home), public gatherings are limited to no more than 10 people. The order defines a “public gathering” as an “indoor event, convening, or collection of individuals, whether planned or spontaneous, that is open to the public and brings together people who are not part of the same household in a single room.”

The order places no restrictions on outdoor gatherings, such as outdoor seating areas at a restaurant or bar; on indoor spaces that are not open to the public, such as a manufacturing plant or an office building; or on invitation-only indoor gatherings.

Employers in counties or cities with their own local public health orders and guidance (such as Dane, Milwaukee, Outagamie, and Winnebago Counties) will need to determine the restrictions applicable to their organization. DHS’s Frequently Asked Questions clarifies that Emergency Order #3 supersedes the requirements in local orders that are less restrictive. Conversely, requirements in local orders that are more restrictive will continue to be enforced. For example, a restaurant in Dane County will be required to comply with the applicable restrictions in Dane County’s PHMDC Emergency Order #9 (see Lake Effect’s blogs on the PHMDC orders) and the 25% indoor capacity restriction in the new statewide Emergency Order #3.

Exempt from the order are:

  • Most childcare settings
  • Placements for children in out-of-home care, such as foster and group homes
  • 4K-12 schools
  • Institutions of higher education
  • Health care and public health operations
  • Human services operations
  • Public infrastructure operations
  • State and local government operations
  • Churches and other places of religious worship
  • Political rallies, demonstrations, and other speech protected by the First Amendment
  • State and federal facilities

The Lake Effect team will continue to monitor important COVID-related updates such as these from federal, state, and local authorities. Please keep watching for blogs and emails from us for important legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Career Coaching Services

In response to continuing financial challenges caused by the COVID-19 pandemic, employers may be compelled to consider layoffs, furloughs, or terminations. Even when faced with such difficult decisions, employers can take steps to care for their workers and help them transition to new opportunities. Organizations might consider offering career coaching and outplacement advisory services to affected staff. These services provide support, help and guidance to workers as they initiate new job searches or contemplate career changes.

Lake Effect can be a valuable partner in these efforts. Our experienced HR advisors and coaches can assist by meeting individually with staff, reviewing their skills, interests, and goals, and rebuilding confidence to explore new opportunities. Lake Effect’s coaches can also help displaced employees develop or update a resume and cover letter, improve interview techniques, or apply the most effective job search methods best suited to the employees’ desired career path. By applying DiSC training to the tailored coaching, employees receive personalized insights that deepen their understanding of their own preferences and tendencies in the workplace. These personalized insights can help workers be more effective interviewers and strengthen future workplace interactions.

At Lake Effect, we are committed to helping organizations maximize their workplace potential with a commitment to kindness, true partnership, and exceptional service. During challenging times, this means supporting clients as they strive to boost morale, maintain a positive culture, and help current and former employees achieve success. Our career coaching and outplacement advisory services may provide one way to help outgoing employees secure a bright future.

Your partners at Lake Effect HR & Law are ready to answer your questions about career coaching and outplacement advisory services. Contact us at info@le-hrlaw.com or 1-844-333-5253.We are also closely monitoring the impact of COVID-19 on all aspects of the workplace. Keep watching for blogs and emails for important legal updates and HR best practices.

DOL Announces Proposed Rule on Independent Contractor Status under the FLSA

On September 22, 2020, the US Department of Labor proposed a new rule to clarify whether a worker will be classified as an independent contractor or an employee under the Fair Labor Standards Act (“FLSA”). The proposed rule will be available for review and public comments for 30 days after it is published in the Federal Register.

The proposed rule adopts an “economic reality” test to determine a worker’s status. That test focuses on whether a worker is economically dependent upon an employer for work or is truly in business for themselves . Economic dependence is the ultimate inquiry. In applying this test, the two most important factors are:

  • Who exercises substantial control over key aspects of work performance? Where the worker sets their own schedule, selects projects, and retains the ability to work for an employer’s competitors, this factor will weigh in favor of independent contractor status. In contrast, where the employer sets the schedule, controls the workload, and requires the worker to perform work exclusively for that employer, this factor will weigh in favor of employee status.
  • Does the worker have an opportunity for profit or loss (i.e. an ability to affect their earnings by the exercise of their own management and initiative)? If the worker can earn more or lose profits based upon their own managerial skills or business acumen, for example by hiring helpers or choosing particular equipment or materials, this factor will weigh in favor of independent contract status. If the worker is unable to affect their earnings or is only able to do so by working more hours or working more efficiently, this factor will weigh in favor of employee status.

Other factors to be considered in assessing independent contractor vs. employee status under the FLSA include the amount of skill required for the work, the permanence of the working relationship between the parties, and whether the work performed by the individual is a component of the employer’s integrated production process for a good or service.

The DOL’s proposed rule emphasizes that the parties’ actual practice is key to the assessment of independent contractor status. What the parties state in a contract or what may be theoretically possible under a work arrangement is of little relevance if it differs from the reality of their working relationship.

Employers should keep in mind that many states have adopted their own tests for independent contractor status under their respective state wage and hour laws; these tests can differ from state-to-state. The tests may also vary based upon the state law issue being addressed, i.e. unemployment compensation eligibility, workers’ compensation coverage, employment tax liability, etc.

The issue of independent contractor versus employee status continues to challenge employers across all sectors throughout the U.S. We will continue to closely monitor the DOL’s proposed rule and other state-based developments in this area. In the meantime, it might be a good time to review your independent contractor agreements and work relationships within your organization. Your partners at Lake Effect HR & Law can help you ensure compliance while retaining the flexible and dynamic workforce that your organization needs. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Governor Evers Extends Statewide Mask Mandate and Public Health Emergency

On September 22, 2020 Governor Evers released two orders. Emergency Order #1 amends his earlier order to extend the statewide face mask mandate to November 21, 2020. This emergency order does not change the face mask requirements that were included in the previous mandate. Lake Effect’s summary of the requirements can be found here. Dane County and other local mask mandates also remain in effect. However, the Governor’s Emergency Order #1 supersedes any local order that is less restrictive.
Governor Evers also released Executive Order #90 declaring a public health emergency and designating the Department of Health Services as the lead agency to respond to the emergency. This order effectively extends the public health emergency previously declared in Executive Order #82.

The Lake Effect team will continue to monitor important COVID-related updates such as these from federal, state, and local authorities. Please keep watching for blogs and emails from us for important legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

DOL Issues Revised FFCRA Regulations

On September 11, 2020, the U.S. Department of Labor’s Wage and Hour Division posted revised regulations to clarify certain rights and responsibilities under the paid leave provisions of the Families First Coronavirus Response Act (“FFCRA”). DOL’s actions are in direct response to an August 2020 New York Federal District Court ruling that invalidated parts of prior FFCRA regulations. The revised regulations will become effective September 16, 2020, when they are published in the Federal Register.

Key portions of the revised regulations provide the following:

  • An employee is only entitled to Paid Sick Leave (“PSL”) and Expanded Family and Medical Leave (“EFML”) under FFCRA if the employer would otherwise have work available for that employee to perform. If there is no work available due to circumstances other than a qualifying reason for the leave, i.e. the employer has laid off or furloughed employees, or has temporarily or permanently closed the worksite, then an employee is not entitled to FFCRA leave. This “available work” requirement applies to all qualifying reasons for FFCRA leaves.
  • An employee must obtain employer approval to take intermittent FFCRA leave for any qualifying reason, regardless of whether the employee is teleworking or working on-site. Intermittent leave occurs when the employee takes leave in separate blocks of time due to a single qualifying reason. For an employee working on-site, many of the qualifying reasons for EPSL leave will not lend themselves to intermittent leave because they create a high risk of spreading the virus. Of note, the revised regulations clarify that the employer-approval requirement does not apply to employees who take FFCRA leave in full-day increments to care for children whose schools are operating on an alternate day (or other hybrid attendance) basis because such leave is not intermittent. In that scenario, where a school is physically closed to the employee’s child on particular days, each day of the school closure constitutes a separate reason for FFCRA leave. Thus, the employee may take leave due to the school closure until that qualifying reason ends (i.e. the school re-opens) and then take leave again when the new qualifying reason begins (i.e. the school closes again) – without the approval of the employer.
  • The definition of a “health care provider,” who may be exempted from FFCRA’s leave provisions, includes only those who meet the definition of that term under the FMLA regulations and those who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.
  • Employees must provide required documentation to support FFCRA leaves to their employers as soon as practicable, but they need not provide it prior to taking PSL or EFML. Similarly, an employee must provide advance notice of EFML as soon as practicable. If the need for that leave is foreseeable, the employee should provide notice before taking the leave.

Your partners at Lake Effect HR & Law are closely monitoring the impact of COVID-19 on the workplace. Keep watching for blogs and emails for important legal updates and HR best practices. The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Lake Effect HR & Law, LLC
(844) 333-5253 (LAKE)
info@le-hrlaw.com

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