Dane County Modifies Phase 2 Reopening

Due to a recent increase in positive COVID-19 cases, Public Health Madison and Dane County (PHMDC) released Emergency Order #6 on June 25. The new order was effective at 10:00 p.m. on the same day.

The new order modifies three sections of Emergency Order #5:

  • Gatherings inside private property and residences are limited to 10 individuals (a reduction from 50 individuals).
    • There is no change to the limitations on mass gatherings inside commercial facilities (up to 50 individuals) or outside (up to 100 individuals).
  • Restaurants and bars must space tables and chairs to ensure customers who are not living together are at least six feet apart. This applies to outdoor and indoor dining spaces.
    • The previous order only required tables be spaced at least six feet apart.
  • Restaurants and bars must prohibit standing service. Customers must stay seated at all times unless they are “in transit.” PHMDC has explained this means “moving to the restroom is fine but patrons must be seated during their visit.”

PHMDC has updated its FAQ on Phase 2 under the Forward Dane reopening plan to include these changes.

The Lake Effect team will continue to monitor important updates such as these from Dane County and other counties across the state. 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.

IRS Guidance on Leave Donation Programs

As communities continue to face challenges related to COVID-19, employers may consider implementing a Paid Time Off (PTO) donation program that allows employees to help charitable organizations provide relief to those impacted by the pandemic.

The IRS recently released Notice 2020-46, which provides guidelines on employer-sponsored charitable leave-based donation programs. Through December 31, 2020, this program allows employees to give back to their employer accrued but unused PTO (such as vacation time, sick time, personal leave time) in exchange for the employer donating an amount equivalent to the donated PTO to charitable organizations that qualify under Section 170(c) and are providing relief to victims of the COVID-19 pandemic. Note that this applies only through the end of this tax year. For example, if an employee making $10.00 per hour donates 40 hours of PTO, the employer converts those donated hours into $400 cash. The employer then donates $400 to an eligible charitable organization, and 40 hours is subtracted from the employee’s PTO balance. Employers can choose which charitable organization(s) will receive an employee’s donated PTO funds.

Employers who wish to create this type of PTO donation program will need to determine the following:

  • Who is eligible to participate in the program?
  • What types of leave may be donated?
  • What increments of time may be donated (hours, days, weeks)?
  • How will employees indicate how much time they want to donate?

A PTO donation program may have tax implications for both employers and employees. We encourage organizations considering such programs to work closely with their tax advisors to ensure proper implementation and reporting under applicable federal and state tax laws.

Phase 2 Reopening Requirements

At 8:00 a.m. on June 15, Dane County began Phase Two of reopening under Forward Dane (revised June 2, 2020). Public Health Madison and Dane County (PHMDC) released Emergency Order #5 to coincide with Phase Two. The order provides requirements for organizations as they continue to gradually reopen. Emergency Order #5 is effective June 15 and will remain in effect until PHMDC determines that Dane County can move into Phase Three.

One of the primary changes in Emergency Order #5 is that many organizations can open to 50% capacity. PHMDC has created a guide to help organizations determine their capacity.

Emergency Order #5 has not changed the requirements that employers develop compliant workplace hygiene, cleaning, and protective measure policies, and document their employees’ receipt, acknowledgment, or training on the policies. If you would like to schedule a meeting with us to prepare a customized policy and/or training for your organization, please contact us.

Please see Forward Dane and the accompanying legal requirements set forth in Emergency Order #5 for new details for your industry. Below is a summary of Emergency Order #5.

Mass Gatherings

  • The following limited mass gatherings are permitted so long as people maintain physical distancing of at least six feet
    • Inside with up to 50 people, not including employees
    • Outside with up to 100 people, not including employees
  • Mass gatherings include concerts, festivals, fairs, parades, movies, performances, shows, trainings, meetings, conferences, sporting events, and sports activities for adults
    • Note that Emergency Order #4 removed religious services from the definition of mass gatherings
  • Drive-in movie theaters or other drive-in activities are not mass gatherings under the order and are not subject to these restrictions

Child Care, Sports Activities, Education, Libraries, and Public Spaces

  • Childcare facilities must restrict groups and classrooms to no more than 15 children if the children are 12 years or younger, or no more than 25 children if the children are at least 13 years old
    • There should be no interaction between the groups or classrooms, and staff interaction between groups must be limited to the greatest extent feasible
    • These restrictions also apply to sports activities for all children and youth 17 years and younger
  • Public playgrounds and splash pads are open, but physical distancing must be maintained
  • Public courts and fields are open, but physical distancing must be maintained
    • Games for low-risk sports – as defined in the order – are allowed if physical distancing is maintained
    • Games between teams for medium and high-risk sports – as defined in the order – are not allowed, but games within a team for medium and high-risk sports are allowed if physical distancing is maintained
    • Adult sports activities are subject to the mass gathering restrictions
    • Sports activities with children and youth 17 years and younger are subject to the restrictions for childcare facilities
  • K-12 schools may open for in person instruction and extracurricular activities on July 1, 2020, if schools create, distribute, and implement the required policies with their staff, including providing employees with face coverings to be used when social distancing is not possible
  • Continuing education and higher education institutions must maintain physical distancing to the greatest extent possible; may determine policies for safe operation; and must adopt strict policies to ensure safe living conditions before opening dorms and other congregate living situations

All Businesses, Libraries, Community Centers, and Religious Entities

  • Capacity must be limited to 50% of approved capacity level
    • See this guide to determining capacity level
  • Organizations must implement required hygiene, cleaning, and protective measure policies, and document that employees receive and acknowledge, or are trained on, these policies
    • See our previous blog on requirements for hygiene and safety policies. Lake Effect is able to help you develop such a policy tailored to your organization. Please contact us if you need assistance.
  • Organizations must limit staff and customers on site, and continue to facilitate remote work to the greatest extent possible, including offering virtual services, meetings, and and/or alternating work teams or staggering shifts
  • When remote work is not possible, all organizations must:
    • Where possible, offer curbside pick-up and drop-off, and delivery
    • Where possible, provide a way for customers to pay, and make appointments and reservations online or over the phone
    • Provide door-to-door solicitation with physical distancing
    • Ensure physical distancing in waiting areas with appropriate spacing of chairs

Additional Industry Specific Requirements

  • Restaurants, bars, and stores that sell food, groceries, and alcohol and non-alcoholic beverages must
    • Encourage pick-up and delivery options
    • Prohibit self-dispensing of bulk items and condiments
    • Prohibit sampling of food and self-service of unpackaged food, e.g. salad bar, buffet
      • Note that beverage stations may now open
    • Limit indoor dine-in capacity to 50% of approved seating levels; space tables at least six feet apart; and limit each table to customers who live together
      • Note that tables are no longer restricted to six people, but it is still required that all people at the table live in the same household
    • Outdoor seating is allowed if tables are spaced six feet apart and each table is limited to customers who live together
    • Space bar stools at least six feet part for customers who do not live together
    • Provide space so that customers maintain physical distancing when not seated
  • Retail stores must
    • Limit the number of customers inside the business to no more than 50% of capacity, not including employees
    • Offer at least two hours per week of dedicated shopping time for vulnerable individuals if your store is larger than 50,000 square feet
    • Prohibit sampling, including of food and any goods
  • Salons and spas must
    • Limit the number of customers to 50% of approved capacity (if capacity is four or less, one customer is permitted)
      • Note that salons and spas are no longer required to operate by appointment only
    • Space customer chairs, tables, and stations at least six feet apart
    • Always require employees to wear face coverings when customers are present
    • Require customers to wear face coverings to the greatest extent possible
  • Gyms and fitness centers must
    • Provide disinfecting materials for members to use on equipment before and after use, and increase frequency of cleaning of equipment, common areas, locker rooms, and restrooms
    • Limit the number of individuals on site (excluding employees) to 50% of approved capacity
    • Space equipment at least six feet apart to the extent possible
    • Use floor markings to indicate appropriate physical spacing, particularly in areas where people congregate or cluster
    • Offer group exercise classes only if physical distancing is maintained between people who do not live together and there is no person-to-person contact
    • Prohibit all activities where physical distancing cannot be maintained between people who do not live together
    • Close saunas and steam rooms
  • Places of amusement and activity must
    • Require payments and reservations only online or over the phone to the extent possible
    • Schedule events or the start of an activity to ensure physical distancing between all individuals who do not live together
    • Space seating, stations, or other areas to ensure at least at least at least six feet of physical distancing between individuals who do not live together
    • Limit the number of individuals on site (excluding employees) to 50% of approved capacity
      • Events such as concerts, festivals, shows, etc. are also subject to the restrictions on mass gatherings
    • Disinfect all equipment between each customer’s use
  • Lodging facilities must
    • Prohibit guests from congregating in lobbies or common areas
    • Adopt cleaning protocols for guest rooms and common areas based on PHMDC guidelines
    • Provide personal protective equipment and training to housekeeping staff for proper handling of linens and cleaning/disinfecting supplies
    • Comply with all other guidelines, such as those that apply to restaurants and bars, if applicable
  • Drive-In movie theaters and other drive-in activities must
    • Prohibit outdoor seating
    • Prohibit customers from leaving their car except to purchase or pick up food or drinks, or to use the restroom
    • Encourage pick-up and delivery of food and drinks, and prohibit any self-service of unpackaged food and self-dispensing of condiments
    • Reservations and payments should be made in advance online or over the phone to the greatest extent possible

Other industries

  • Health care, public health, human services, infrastructure, manufacturing, and government operations are subject to specific provisions and restrictions under Emergency Order #5, namely these organizations must implement required cleaning and hygiene policies, and comply with other applicable PHMDC, state, and federal requirements (see Sections 4.b. – 4.e., 4i, 4j)

Leased Property

  • Landlords and rental property managers may enter and show leased residential properties if all individuals wear face coverings and maintain physical distancing

Violations of this order are considered ordinance violations and are enforceable by any local law enforcement official.

The Lake Effect team will continue to monitor important updates such as these from Dane County and other counties across the state. 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.

U.S. Supreme Court Rules on LGBTQIA Workplace Protections

The United States Supreme Court has ruled that federal law prohibits employers from firing an individual merely for being gay or transgender. Bostock v. Clayton County, Georgia, 590 U.S. ___ (2020).

Under Title VII of the Civil Rights Act, employers may not discriminate against any individual because of race, religion, national origin, or sex. The question before the Supreme Court was whether firing an employee because of their homosexuality or transgender status falls within the scope of discrimination because of sex. Writing for the majority, Supreme Court Justice Gorsuch said the answer was clear. “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The Bostock decision provides clarity to employers. Federal courts had previously reached conflicting decisions about the application of the Civil Rights Act to employment discrimination based on an employee’s sexuality or gender identity. State and local laws also vary across the country. The Wisconsin Fair Employment Act considers discrimination based on sexual orientation to be a form of sexual discrimination, but it does not prohibit discrimination based on gender identity. However, the Madison Equal Opportunities Ordinance expressly prohibits discrimination on the basis of sexual orientation and gender identity. This Supreme Court decision makes it clear that discrimination or harassment based on sexuality or gender identity is prohibited under federal law.

The Lake Effect team will continue to monitor important legal updates . Please contact us if you have questions related to workplace discrimination or need assistance with professional development or respectful workplace training.

EEOC Updates Guidance On COVID-19 And EEO Laws

Earlier today, the EEOC updated its Q&A Covid-19 Guidance as it relates to the ADA, the Rehabilitation Act, and other federal EEO laws. Key new provisions specify:

  • The ADA does not require an employer to accommodate an employee without a disability in order to avoid exposing that employee’s family member who might be at a higher risk of severe illness from COVID-19 due to an underlying health condition (D.13).
  • Managers must understand how to recognize and respond to harassment based upon national origin, including demeaning, derogatory or hostile remarks directed against employees perceived to be of Chinese or Asian national origin. Employers may remind the workforce of Title VII’s prohibition against harassment and invite employees who experience or see such harassment to report it (E.3).
  • Employees who are teleworking are specifically prohibited from harassing other employees through emails, calls, videos or other virtual platforms (E.4.). This is consistent with EEOC guidance that an employer must address workplace harassment in any form, including electronic and virtual.
  • Before employees start returning to the workplace, and even if no date is set for their return, employers may (but are not required to) provide information about who to contact if employees wish to request an accommodation or flexibility for a disability or other reason (i.e. pregnancy, age, religious beliefs). If such requests are received in advance, the employer may begin the interactive process and/or consider non-disability related requests on an individualized basis consistent with federal EEO laws (G.6).
  • If an employee returning the worksite requests an alternative method of health screening due to a medical condition, the employer must consider it as a request for a reasonable accommodation under the ADA or the Rehabilitation Act and proceed with the interactive process. If an alternative method of screening is requested as a religious accommodation, the employer should determine whether the accommodation is available under Title VII of the Civil Rights Act of 1964 (G.7).
  • The ADEA prohibits employers from involuntarily excluding employees from the workplace based on age, even if the employer is trying to protect an older employee who may be at a higher risk of severe illness from COVID-19. However, the ADEA does not prohibit employers from providing flexibility to older workers, even if it results in younger workers (over age 40) being treated less favorably based on age in comparison. Older workers may request reasonable accommodations based on existing medical conditions or disabilities which may be covered under the ADA as a disability (H.1).
  • Employers can provide telework, modified schedules and other benefits to employees with school-aged children due to school closures, etc. during the pandemic as long as they do not treat employees differently based upon sex or other EEO-protected traits. Thus, female employees cannot be given greater flexibility than male employees based upon gender-based stereotypes about who may have primary childcare responsibilities (I.1).
  • Employers may not exclude employees from the workplace during the pandemic due to pregnancy, even if done for a benevolent purpose. This constitutes sex discrimination under Title VII (J.1). Still, pregnant employees may request reasonable accommodations based on a medical condition that qualifies as a disability under the ADA.
  • If an employee requests a reasonable accommodation due to a pregnancy-related or other medical condition, the employer must consider that request consistent with ADA requirements. In addition, the employer must treat pregnant employees the same as other employees with a similar ability or inability to work when it comes to requests for leave or other flexible work arrangements (J.2).

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.

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

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