DWD’s Work-Share Program: Another Option to Avoid Layoffs

As employers evaluate options to address the impact of COVID-19 on their organizations, Wisconsin’s Department of Workforce Development (DWD) is encouraging participation in its Work-Share Program.

The Work-Share Program is designed to help employers avoid layoffs of at least two employees by reducing employees’ hours during slow business periods of up to six months. The state has adopted legislation relaxing some of the program’s requirements to make it more accessible for employers during the pandemic. Through December 31, 2020, the thresholds for work-share plans have been simplified and lowered, as follows:

  1. the plans are no longer restricted to a particular work unit;
  2. the plans normally apply to the greater of 20 positions or 10% of the employees in a work unit, but now the plans may cover at least two employees; and
  3. the participating employees’ reductions in hours previously could not exceed 50%, but now the participating employees’ hours may be reduced by 10-60%.

The intent of the program is to keep employees working and covered on employee benefit plans, while also allowing them to receive unemployment benefits. Participating employees are eligible for state and federal unemployment benefits, including employees earning more than $500/week from any employer/s who would otherwise be ineligible for unemployment. In addition, employers are required to maintain the participating employees’ health insurance coverage and coverage under any defined benefit or defined contribution retirement plan under the same terms and conditions that applied before participation in the work-share plan.

To participate, employers must submit an application to the DWD. The application must outline, among other things, information about the employees who will participate in the plan and the reduction in the employees’ hours. DWD has dedicated staff to handle questions about the Work-Share Program and is expediting the review of work-share applications.

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace and will continue to provide 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.

EEOC Updates ADA Accommodations and EEO Reporting

On May 7, 2020, the EEOC updated an existing technical assistance publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws.” New questions and answers on “Return to Work” address an employer’s obligations to accommodate employees with underlying medical conditions as they begin to return to the workplace during the ongoing COVID-19 pandemic. The EEOC also provided updated guidance on EEO reporting.

The new guidance confirms that if an employee has a medical condition that may create a higher risk for severe illness from COVID-19 (as identified by the CDC) and is in need of a reasonable accommodation, the employee must inform their employer either verbally or in writing about the medical condition and the potential need for an accommodation. The employer may then ask questions or seek medical documentation to determine whether the employee has a disability that can be reasonably accommodated without undue hardship. Notably, if an employee does not request an accommodation, the employer is not required to take action. If the employer knows and is concerned that an employee has a medical condition that increases the risk of severe illness from COVID-19 (as identified by the CDC), the employer may not exclude that employee from the workplace or take any other adverse action solely on that basis unless (1) the employee’s disability poses a “direct threat” to their health that (2) cannot be eliminated or reduced by reasonable accommodation.

The ADA “direct threat” requirement is a high, fact-specific standard. The direct threat assessment may not be based solely on a condition being on the CDC’s list; rather, an employer must make an individualized assessment based upon a reasonable medical judgment about the employee’s specific disability. In most cases, the employer will have to consider such factors as: the severity of the pandemic in the geographic area of the worksite; employee’s specific health condition; the employee’s job duties; likelihood of exposure to the virus at the worksite; and measures being taken by the employer to protect all workers.

Even if an employer determines that an employee’s disability poses a direct threat to the employee’s own health, the employer still cannot exclude or take adverse action against the employee unless there is no way to provide a reasonable accommodation absent undue hardship to the employer. Potential reasonable accommodations may include: providing enhanced protective gear or equipment; erecting protective barriers in the workplace; eliminating marginal functions; and temporarily modifying an employee’s work location or schedule.

This means that an employer may only bar such an employee from the workplace if, after going through all necessary steps and considering all potential accommodations, the facts demonstrate that the employee poses a significant risk of substantial harm to herself that cannot be eliminated by reasonable accommodation.

In a separate action today, the EEOC announced that it will delay collection of 2019 and 2020 EEO-1 (Employer Information Report), 2020 EEO-3 (Local Report) and 2020 EEO-5 (Elementary-Secondary Staff Information Report) due to the COVID-19 public health emergency. The EEOC expects to begin collecting 2019 and 2020 EEO-1 reports in March 2021, and it expects to begin collecting 2020 EEO-3 and EEO-5 reports in January 2021. The EEOC will notify filers of the precise dates the surveys will open as soon as those dates are available.

The legal and HR team at Lake Effect is closely monitoring the continuing impact of COVID-19 on the workplace and will continue to provide timely updates. Please visit our COVID-19 resource page for all of our pandemic-related legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Updated Cobra Forms

On May 4, 2020, the Department of Labor and the Internal Revenue Service jointly provided updates to the notification and elections deadlines set forth in the Consolidated Omnibus Budget Reconciliation Act (COBRA) intended to protect the participants and beneficiaries in employee benefit plans during the National Emergency caused by the COVID-19 pandemic. The final rule, effective immediately, includes the following:

New “Outbreak Period” defined: The final rule defines a new “Outbreak Period” as the period from March 1, 2020 until 60 days after the end of the declared National Emergency. Note that the Trump Administration has not yet specified the end date of the National Emergency. Thus, we do not yet know when the Outbreak Period will end.

COBRA elections period extended: Normally, after a qualifying event (i.e. employment termination, reduction in hours, or other loss of coverage), employees have 60 days after receipt of a COBRA Election Notice to elect COBRA coverage. Under the new rule, employees will have until 60 days after the end of the Outbreak Period to elect COBRA coverage and return the form to the employer. Again, since we do not know the end of the Outbreak Period, we do not know when the 60-day extension ends.

Deadline to pay COBRA premiums extended: Normally, employees have a grace period of 45 days after making their COBRA election for their initial COBRA premium payment and a grace period of 30 days each month to pay their COBRA premiums for each subsequent month of COBRA coverage. Under the new rule, employees will have 45 days following their COBRA election, which is extended as noted above. Furthermore, for any COBRA premiums due during the Outbreak Period, employees will have 30 days following the end of the Outbreak Period to make catch-up payments (i.e. payments for at least March, April and May). Again, since we do not know the end of the Outbreak Period, we do not know when the 30-day extension ends.

For COBRA notices that have been sent out since March 2020, employers should communicate the new extended deadlines to all recipients. This can be done by a simple letter to the address of record for each employee. Employers should also consider supplementing or modifying COBRA notices provided to employees between May 4 and the end of the Outbreak Period to reflect the revised deadlines set forth in the new final rule.

Employers can download the updated forms in Word format on this page by clicking on the appropriate icons. The new language is highlighted in yellow and areas to be customized are highlighted in green. Employers will then need to insert information about their benefits plan/s, premium/s, COBRA deadlines, and COBRA administrator. Alternatively, the attorneys and HR professionals at Lake Effect HR & Law can help you tailor the forms for your organization. We can also assist and advise on overall COBRA administration.

The attorneys and HR professionals at Lake Effect HR & Law can help you draft the employee communication or update the COBRA forms for your organization. We recognize the administrative struggles this will present for your COBRA administrator and your health plan. Our team is also available to assist and advise on this COBRA administration.

Illinois Provides Model for Newly Required Anti-Harassment Training

On April 30, the Illinois Department of Human Rights released a model training presentation that employers can use to comply with Illinois’ new sexual harassment prevention training requirement. An employer may use this model training, or it may develop a training specifically tailored to its organization, provided that the training meets the state’s minimum legal requirements.

In 2019, Illinois adopted a new law requiring employers to provide annual sexual harassment prevention training to all Illinois employees. This requirement also applies to employers based in other states that have one or more employees working remotely in Illinois or working at a customer’s worksite in Illinois. All Illinois employees must be trained by December 31, 2020. Restaurants and bars must also provide supplemental sexual harassment prevention training targeted specifically for those industries.

Two major points about the new training requirement from the state’s FAQs:

  • Although employers are not required to train independent contractors, Illinois strongly advises that independent contractors receive training if they work on-site at an employer’s workplace or interact with employees.
  • Employers should include in their anti-harassment training any employee who is based outside of Illinois but regularly works with employees in the state. For example, a manager based in Wisconsin who supervises employees working in Illinois should be included in the training.

While virtual training may be the only option in our current environment, employers should keep in mind that the EEOC has found that anti-harassment training is most effective when it is tailored to the specific workplace and workforce, as well as provided in-person, with interactive discussion, and by an experienced trainer.

The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to assist and advise if you have questions related to anti-harassment or other employee training. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Updated Cobra Forms

On May 1, 2020, the Department of Labor announced updates to the Consolidated Omnibus Budget Reconciliation Act (COBRA) Model General Notice and Model Election Notice. The modifications provide information about Medicare as an option for employees who have lost their health insurance as a result of a qualifying event. Given the number of layoffs and terminations resulting from the COVID-19 pandemic, these are timely updates.

Employers can download the updated forms in Word format by clicking on the button below, and the new language is highlighted in yellow and areas to be customized are highlighted in green. Employers will then need to insert information about their benefits plan/s, premium/s, COBRA deadlines, and COBRA administrator. Alternatively, the attorneys and HR professionals at Lake Effect HR & Law can help you tailor the forms for your organization. We can also assist and advise on overall COBRA administration.

Employers: Include NYC Independent Contractors in Your Anti-Harassment Training

Under the recently expanded New York City Human Rights Law (NYCHRL), employers must include independent contractors in their sexual harassment training. This is a major shift in how independent contractors are generally treated. Employers should include an appropriate disclaimer before providing anti-harassment training to an independent contractor to clarify that the training does not change their independent contractor status.

This training requirement applies to all New York employers with 15 or more total workers. “Workers” includes employees who work outside of New York City and independent contractors. This means that if a Wisconsin based employer has 14 employees in Wisconsin and 1 employee or independent contractor in New York City, that employer must provide the required sexual harassment training to the worker in New York City, and comply with the other applicable New York State and New York City laws. Note that as of February 8, 2020, the New York State Human Right Law will apply to all employers with at least 1 employee in New York.

The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to assist and advise if you have questions related to mandatory anti-harassment training or independent contractors in Wisconsin or other states. Contact us at info@LE-hrlaw.com or 1-844-333-5253.

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