Wisconsin Judge Reinstates Emergency Order Restricting Indoor Gatherings

Update 10/26/2020

The statewide indoor capacity restrictions in Emergency Order #3 are not enforceable, at least for now. On October 23, 2020, a Wisconsin court of appeals reinstated a temporary injunction blocking enforcement of the statewide restrictions. The court of appeals decision follows conflicting rulings from two district courts on whether Emergency Order #3 should be enforced pending the outcome of the lawsuits filed against Governor Evers’ administration.

This is a constantly evolving issue. Employers should ensure they are following the current state and local public health restrictions applicable to their organization. Summaries of the public health orders can be found here.


10/20/2020

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.

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.

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.

Public Health Madison Dane County Issues Emergency Order #9

UPDATE

On September 1, 2020, PHMDC released Emergency Order #9 Amendment. The only change made to Emergency Order #9 was to allow for in-person instruction for students in any grade with a disability and/or with an IEP who may need to receive in-person instruction. This change is reflected in paragraph 4.d. on page 5 of the order.

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Prohibits In-Person Instruction for Grades 3-12

Effective Monday, August 24, 2020, public and private schools in Dane County may not hold in-person student instruction for students in third to twelfth grades under Public Health Madison and Dane County (PHMDC) Emergency Order #9. Schools may conduct kindergarten to second grade classes in-person with certain restrictions, including a requirement that the school also offer virtual learning options for its K-2 students. In order to open, schools must also adopt and distribute to staff PHMDC’s COVID response plan, which has not yet been posted.

Emergency Order #9 also modifies requirements applicable to child and youth care; expands the County’s face mask requirements; clarifies restrictions on religious groups; and changes the use of “bar” to “tavern,” as defined under Wisconsin statutes. The other requirements of PHMDC Emergency Order #8 remain unchanged.

School Closures

  • All school buildings and grounds – public and private – may open for in-person student instruction only for grades K-2. These schools must also offer a virtual option for students.
  • Although not included in the Emergency Order, PHMDC stated that it may consider reopening grades 3-5 for in-person instruction if Dane County sustains at or below a 14-day average of 39 cases per day for four consecutive weeks. For PHMDC to consider reopening grades 6-12 for in-person instruction, Dane County must sustain at or below a 14-day average of 19 cases per day for four consecutive weeks. PHMDC also noted that if there are more than 54 average cases per day over a two-week period, they would consider closing all schools to in-person instruction. We anticipate that PHMDC would provide orders when metrics permit reopening certain grades, or closing all grades.
  • Under revised requirements, all schools must:
    • Implement a hygiene policy and procedure (Section 4.d.i.), and a cleaning policy and procedure(Section 4.d.ii.)
      • PHMDC has not changed these policy requirements
    • Implement a written protective measure policy and procedure (Section 4.d.iii.) that includes several new requirements to ensure that:
      • When indoors and on buses, students age 5 and older and employees wear face masks and, to the greatest extent possible, maintain at least six feet distance from others.
      • Students and employees who cannot wear a face mask (based on the exceptions set forth in Section 2.c.) maintain at least six feet distancing from others when indoors and on buses.
      • Students and employees, to the greatest extent possible, maintain at least six feet distance from others when outside.
      • Student and employee groupings are as static as possible by having the same group of students stay with the same employees as much as possible. Mixing between groups must be restricted as much as possible.
      • While common areas (such as cafeterias and gyms) may be open, student groupings should be in distinct spaces within the common areas and not mix with one other.
    • Implement PHMDC’s action plan for COVID-19 cases
      • PHMDC will post this plan here when it is available
    • Document employee receipt, acknowledgment, or training on the cleaning, hygiene, and protective measure policies and the COVID action plan (Section 4.d.iv).
    • Post PHMDC’s workplace requirements poster in a location where it is easily viewed by all employees.
      • Employers can email this to all its employees if all or some of your school staff is working from home.

Modified Restrictions on Child and Youth Care

  • Groups or classrooms must be limited to 15 or fewer children regardless of the children’s ages.
    • Under previous orders, the limit was 25 children if they were all 13 years or older.
  • Organizations must also require children who are 5 years or older to maintain at least six feet apart to the greatest extent possible.

Expanded Face Coverings Requirements

  • A face covering is still required for all individuals age 5 or older. Children 2-5 years old are encouraged to wear a face covering. Note that PHMDC has clarified that children under the age of 2 should never wear a covering.
  • In addition to being required indoors, in line to enter a building, or in a vehicle with individuals outside of your home, face masks are now also required outdoors at a restaurant or tavern.
  • As a reminder, all organizations are required to post PHMDC’s “Face Covering” sign, or a similar sign, that is visible upon entering the property.
    • This posting requirement includes residential properties that have shared common indoor spaces, e.g. hallways, lobbies, mailrooms.
  • Recall that a face covering is defined as “a piece of cloth or other materials that is worn to cover the nose and mouth completely.” This may include a bandana, cloth face mask, a disposable or paper face mask, a neck gaiter, or a religious face covering. It does not include a face shield, mesh mask, a mask with holes or openings, or a mask with vents.

Religious Group Gatherings

  • PHMDC clarified that religious entities are exempt from mass gathering requirements only for religious services and practices.

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.

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.

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

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