Emergency Order #34: Interim Order to Turn the Dial

On April 27, 2020, the Evers Administration released Emergency Order #34 entitled “Interim Order to Turn the Dial.” In this order, the administration expands slightly the permissible business operations set forth in Emergency Order #28, “Safer at Home Order.” This Order takes effect on Wednesday, April 29, 2020 at 8:00 a.m.

While Section 14 of “Safer at Home” permitted curb-side pick-up as part of Minimum Basic Operations, this Order adds “curb-side drop-off of goods or animals for the purpose of having those goods or animals serviced, repaired, or cared for by the business.” Staff within the business or facility is still limited to 1 person in a room or confined space and payment must be made by phone or online (i.e., no transfer of cash or check and no signature for receipt). All arrangements must be scheduled in advance, and customers may not enter the business or facility to ensure proper social distancing.

This Order also expands Minimum Basic Operations to include rental of recreational equipment “including but not limited to boats, kayaks, canoes, paddle boats, golf carts, snowmobiles, and ATVs.” The staff count, payment methods, scheduling requirements, and prohibition against customers entering the business or facility mirror those set forth above for curb-side drop-off. All rental equipment must be thoroughly cleaned been uses.

Finally, the Order expands Minimum Basic Operations to include car washes, provided the car wash is entirely automatic or self-service. All high-touch surfaces must be cleaned between use if possible, or as frequently as practicable.

Consistent with its “Badger Bounce Back” plan, the Evers Administration is progressing towards its stated goal of gradually reopening businesses and operations across the state. As always, the attorneys and HR professionals at Lake Effect HR & Law are available to advise you as you develop plans to restore operations and welcome team members back to the workplace. We look forward to helping our partners bounce back. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Badger Bounce Back

On April 20, 2020, the Evers Administration released Emergency Order #31 entitled “Badger Bounce Back.” In this order, the administration sets forth a plan for a phased reopening of businesses so that Wisconsinites can get back to work.

Based upon recent federal guidelines, the Badger Bounce Back plan specifies criteria that will enable Wisconsin to begin the gradual process of reopening for business. Criteria include: reductions in cases and COVID-19 symptoms over an extended period of time; sufficient hospital capacity; a robust testing program; adequate personal protective equipment levels; and contact tracing capabilities.

In preparation for fully reopening their doors, employers are encouraged to rely upon federal, state and local regulations and guidance, informed by industry best practices and the WEDC, to develop and implement policies relating to: physical distancing and protective equipment; employee temperature checks and symptom screening; testing, isolating and contact tracing; sanitation; use and disinfection of common and high-traffic areas; business travel; and other best business practices to ensure a safe workplace.

It is clear that this will be a complex and gradual process. It will require Wisconsin employers to be patient, diligent and innovative. Rest assured, the attorneys and HR professionals at Lake Effect HR & Law are available to advise you as you develop plans to restore operations and welcome team members back to the workplace. We look forward to helping businesses move beyond “Safer-at-Home” to “Badger Bounce Back.” Contact us at info@le-hrlaw.com or 1-844-333-5253.

DOL Ends Temporary Non-Enforcement of New Paid Leave Protections

As of April 21, 2020, covered employers (with fewer than 500 employees) across the country must be in full compliance with the paid leave provisions of the Families First Coronavirus Response Act (FFCRA), which became effective April 1, 2020. On April 20, the U.S. Department of Labor announced the end of the temporary period of non-enforcement, which was intended to allow employers time to understand and come into compliance with the new Emergency Paid Sick Leave and Emergency Family Medical Leave laws.

Moving forward, full compliance with FFCRA will be expected. Moreover, proper documentation and administration of the new Emergency Paid Sick Leaves and Emergency Family Medical Leaves will be critical to receiving payroll tax credits for the sick leave wages provided to employees under the new law.

If you have any questions or need assistance administering the new FFCRA paid leave laws, 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.

EEOC Technical Assistance Q&As Update

Last Friday, April 17, 2020, the EEOC updated its Technical Assistance Q&As about COVID-19 and the ADA, the Rehabilitation Act, and other EEO laws. The updated Q&As reiterate prior guidance and offer some new information. Key provisions for employers include the following:

  • Disability-related inquiries and exams
    • During the pandemic, employers may ask employees if they are experiencing symptoms of COVID-19, such as fever, chills, cough, shortness of breath or sore throat. Employers should rely on CDC and other public health authorities for guidance on additional, emerging symptoms which may be associated with COVID-19. Such new symptoms may include a loss of smell or taste, as well as gastrointestinal problems. (See A.1-A.2)
    • Employers may measure employees’ body temperature at work and maintain a log of its results. See below regarding maintaining the confidentiality of such information. (See A.3, B.2)
    • Employers may require employees with symptoms of COVID-19 to leave the workplace and/or stay home. (See A.4)
  • Confidentiality of Medical Information
    • Employers must maintain all information about employee illnesses, including body temperature logs, separately from personnel files. Such information must be maintained as confidential medical records in compliance with ADA. All medical information relating to COVID-19 may be stored in employees’ existing medical files. (See B.1)
    • An employer may disclose the name of an employee with COVID-19 to a public health agency. (See B.3) Note that this does not include disclosure of the employee’s name to co-workers.
    • A staffing agency or contractor who learns that one of its temporary workers has COVID-19 may notify and disclose the name of that temporary worker to the employer where the worker has been placed. (See B.4)
  • Hiring and Onboarding
    • An employer may screen job applicants for symptoms of COVID-19 and take applicants’ body temperatures after making a conditional job offer, as long as it does so for all entering employees for the job. (See C.1-C.2)
    • If an employer needs an applicant to start immediately, but the applicant has COVID-19 or related symptoms, the employer may withdraw a job offer to the applicant. An employer may not withdraw a job offer simply because an applicant is age 65 or older or pregnant and is at increased risk for COVID-19. The employer may propose telework or delaying a start date. (See C.4-C.5)
  • Reasonable Accommodation
    • Employers may be required to consider reasonable accommodations that can offer protection to an individual at increased risk for COVID-19 in the workplace if they do not cause undue hardship to the employer. Flexibility by both employers and employees is key in assessing potential accommodations. Keep in mind that federal agencies are encouraging employers and employees to engage in discussions and come up with creative solutions to foster the ability to work. (See D.1)
    • An employee whose preexisting mental illness or disorder is exacerbated by the pandemic may be entitled to a reasonable accommodation, absent undue hardship. Likewise, an employee who was receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship. (See D.2, D.4)
    • If an employee requests a reasonable accommodation during the pandemic, the employer may still request information to determine whether the employee has a covered “disability” under the ADA. The employer may also engage in the interactive process and request information about why an accommodation is needed. (See D.5-D.6)
    • During the pandemic, where an employer may have limited time to discuss accommodation requests, an employer may forgo or shorten the interactive process and provide a temporary accommodation to an employee. The employer may also provide a requested accommodation on an interim or trial basis, or place an end date on the accommodation. (See D.7)
    • Circumstances created by the pandemic are relevant to determining whether a requested accommodation will cause significant difficulty or expense for an employer and, thus, pose an undue hardship. An employer’s difficulty in acquiring or providing certain accommodations, sudden loss of income stream, or reduction in discretionary funds due to the pandemic are relevant considerations in assessing whether a requested accommodation imposes an undue hardship, meaning significant difficulty or expense. (See D.9-D.11)
  • Pandemic-Related Harassment
    • Employers can minimize pandemic-related harassment by reminding employees that fear of the pandemic should not be misdirected against individuals because of any protected characteristic, including national origin or race. This holds true even when employees are teleworking or still working on site during the pandemic. As workplaces reopen or return to full operations, employers should reiterate prohibitions against all forms of harassment and discrimination and train managers to watch for and report any issues. (See E.1-E.2)
  • Return to Work
    • When employees begin to return to the physical workplace, employers can implement screening measures (i.e. take temperatures, ask questions about symptoms) as long as they are consistent with advice from the CDC and public health authorities regarding that type of workplace at that time. (See G.1)
    • Employers may need to consider requests for modified protective gear as reasonable accommodations when employees with disabilities or who wear certain clothing as part of their religious observation return to the workplace.

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace and will continue to provide our clients with updates as they are available. Check out our COVID-19 resource page for all of our pandemic-related 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.

Safer at Home Extended – Preparing for Your “New Normal”

In the wake of Governor Evers’ extension of Wisconsin’s Safer at Home Order until May 26th, we are all eager to return to our normal ways, but what will our normal be after the quarantines lapse? What can we learn from this experience? What do we want to carry forward as part of our “new normal,” both personally and in the workplace?

Many people have discovered that they enjoy the flexible work schedule and wellness habits that they can incorporate while working at home. People have enjoyed sleeping in (minus the COVID-19 related dreams), eating healthier, taking walks in the afternoon, spending more quality time with the kids, working during their most productive time of their day, and implementing other work/life balance habits that were difficult to attain in the past. Some organizations are facing very dark days, reducing staff and pay, and anticipating future challenges. In the face of it all, however, organization leaders have expressed pride in the innovation, collaboration, resiliency, and flexibility of their teams over the past few weeks.

What can we learn from this? What can we adopt and incorporate to improve work performance, relationships and overall job satisfaction? Ask yourself and your team members what went well during this time and how you can continue to support new-found innovation, creativity, engagement, collaboration, and resiliency. Use this challenging experience as an opportunity to capture the best parts of your organization’s new normal and strategize now to prevent your organization from falling back into old, bad habits.

In addition, take some time to review your emergency and business continuity plans, handbook policies and procedures, and benefit plans to ensure that your organization is better prepared to manage future catastrophic events. You may want to consider some of the following:

  • Implement an employee assistance plan, including free and confidential assessments, short-term counseling, referrals, and follow-up services to employees who have personal and/or work-related problems including work-life stressors, family issues, financial concerns, relationship problems, addiction concerns, etc.
  • Implement a financial literacy and advisory program for your team to improve financial literacy, planning and security.
  • Establish an internal Emergency Action Plan and communicate it to staff on a regular basis. Consider testing the plan with impromptu drills.
  • Integrate flexible work schedules and virtual work opportunities that can minimize commute times, reduce transmission of infection, encourage healthy habits, and enable team members to spend more time with family. Expand leave policies to include care for close friends and non-traditional family members.
  • Expand bereavement leave policies to include loved ones beyond immediate family members. Consider providing more than a few days to grieve or plan a funeral.
  • Modify the way you coach and manage employees’ performance to move away from micromanaging to a results-based methodology.
  • Move to a (more) paperless work environment to support virtual team members and improve organizational preparedness during unexpected disruptions or workplace closings.
  • Review and enhance IT security to protect the information of your team members, organization, and clients/customers.

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace and will continue to provide our clients with updates as they are available. Check out our COVID-19 resource page for all of our pandemic-related 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.

Summary of WI Act 185 – COVID-19 Relief Package

On Friday April 15, 2020, Governor Evers signed into law Act 185, a comprehensive COVID-19 relief package. Key provisions for employers include the following:

  • Waiver of 1-week waiting period for unemployment insurance (UI) benefits: One week waiting period for UI benefits will not apply with respect to benefit years that begin after March 12, 2020 and before February 7, 2021. (Section 38: 108.04). The federal government will provide funding for this benefit.
    • Recall that, under the CARES Act, the federal government expanded the maximum UI benefits period from 26 weeks to 39 weeks and provided an additional $600/week in UI benefits. For a good summary, see https://dwd.wisconsin.gov/uiben/caresact/.
  • COVID-Related UI claims charged to WI’s balancing account, not employer’s account: The Department of Workforce Development shall, when processing initial claims for UI benefits, determine whether a claim is related to the public health emergency declared on March 12, 2020 by Executive Order 72. If a claim is so related, the benefits shall be charged to the fund’s balancing account, rather than to the employer’s own account. (Section 50: 108.07). That state’s share of any benefits paid on a public health emergency-related claim shall also be charged to the fund’s balancing account, rather than the employer’s account. (Section 51: 108.14). This means that COVID-related claims will not adversely affect an employer’s UI tax rate.
  • Temporary removal of requirement to provide copy of employee’s personnel file: During public health emergency, employer is not required to provide copy of personnel records within 7 working days after request; nor is employer required to provide opportunity for inspection of personnel records. (Section 35: 103.13 (2m))
  • Presumption of Workers Compensation injury for first responders contracting COVID-19: Injury to first responder found to be caused by COVID-19 will presumed to be caused by the person’s employment for purposes of workers’ compensation benefits (can be rebutted by specific evidence that injury was caused by exposure outside of work). (Section 33: 102.03).
  • WEDC to Develop Plan to Support Major Industries: No later than June 30, 2020, the WEDC shall submit to the legislature and governor a report that includes a plan for providing support to the major industries in the state that have been adversely affected by COVID-19 public health emergency, including tourism, manufacturing, agriculture, forest products, construction, retail and services. (Section 105: (26m))

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace and will continue to provide our clients with updates as they are available. Check out our COVID-19 resource page for all of our pandemic-related 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.

Updated CDC and OSHA Guidance Regarding Employees with COVID-19 at Worksite

Two government agencies recently released updated “interim guidance” for employers responding to COVID-19 in the workplace. This is important information for employers in essential and critical businesses who still have active workplaces. On April 8, 2020, the Centers for Disease Control provided new guidance on treatment of workers with suspected or confirmed exposure to COVID-19. On April 10, 2020, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) released new guidance recording cases of COVID-19.

New CDC Guidance:

  • The CDC advises that “critical infrastructure workers” may continue working following exposure to COVID-19, provided they are asymptomatic and additional precautions are taken.
  • Critical infrastructure workers include workers in food and agriculture, critical manufacturing, information technology, transportation, energy, government facilities, janitorial staff, law enforcement, 911 center employees, hazardous materials responders, and Fusion center employees.
  • Potential exposures are defined as being a household contact or being within 6 feet of an individual with confirmed or suspected COVID-19.  The contact must have been within 48 hours before individual became symptomatic.

Additional precautions that an employer should take include:

  • Pre-screening employees by taking temperature and assessing symptoms before shifts begin.  Ideally, this should be done before a worker enters the worksite.
  • Asking an employee to self-monitor both during and between shifts, following the employer’s occupational health program.
  • Requiring exposed employees to wear a mask at work for 14 days after exposure. Employers can provide masks or employees can wear their own.
  • Requiring all employees to abide by the 6-foot social distancing rule during shifts, as permissible. Employees should not share equipment that must be placed near their mouths or noses.
  • Cleaning and disinfecting all workspaces on a frequent and regular basis, and increasing air exchanges in rooms.
  • If an employee becomes symptomatic at work, they should be sent home immediately.  Employers should track all other employees who had contact with the ill employee in the 48 hours before becoming symptomatic.  Any employee who was within 6 feet of the ill employee should be considered to be exposed to COVID-19. Keep in mind that employee privacy protections still apply.

New OSHA Guidance:

  • If an employer can identify that an employee contracted COVID-19 through worksite exposure, the employer must record that injury in OSHA logs as a “work-related illness.”  COVID-19 is considered a recordable illness and employers must record cases of COVID-19 if the following are true:
    • The employee has a confirmed case of COVID-19;
    • The illness is considered to be work-related; and
    • An illness is considered to be work-related, “if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment,” unless an exception is met.
    • The illness involves one or more of the recording criteria, including medical treatment beyond first aid or days away from work.
  • However, because it may be difficult for employers to determine if an employee with COVID-19 contracted COVID-19 at work, OSHA will not enforce its record-keeping requirements on employers to make “work-relatedness” determinations, except when there is objective evidence that the exposure was work-related and that evidence is reasonably available to the employer.
    • Note: this exception applies only to employers outside of the healthcare industry, first responder organizations and correctional facilities.

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace and will continue to provide our clients with updates as they are available. Check out our COVID-19 resource page for all of our pandemic-related 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.

DOL Issues Temporary Rule Regarding Paid Leaves Available Under FFCRA

On April 1, 2020, the U.S. Department of Labor’s Wage and Hour Division posted a Rule (to be final when published on 4/6/20) issuing regulations under the Families First Coronavirus Response Act (“FFCRA”). The regulations provide further clarity as to how the leave provisions of the Expanded Family and Medical Leave Expansion Act (“EFMLEA”) and Emergency Paid Sick Leave Act (“EPSLA”) will be implemented. Key provisions include:

Comprehensive Legislative Proposals to Address COVID-19 Impact

On April1, 2020, Governor Evers announced a second package of legislative proposals to support Wisconsin businesses and citizens who continue to confront unprecedented challenges during the COVID-19 pandemic. This second proposed package is intended to supplement the Governor’s first piece of proposed legislation which included additional funding for public health and healthcare professionals, a waiver of the customary one-week waiting period for unemployment insurance, and other assistance for Wisconsin organizations, residents and communities.

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