New Law Limits COVID-19 Civil Liability For Wisconsin Employers

Governor Evers signed 2021 Wisconsin Act 4 into law on February 26, 2021, providing Wisconsin employers with broad protection from civil law claims relating to COVID-19. Effective March 1, 2020, Wisconsin businesses, schools, and non-profit organizations are immune from civil liability for the death of or injury to any individual or damages caused by an act or omission resulting in or relating to exposure to COVID-19. The law applies retroactively to all claims arising on or after March 1, 2020, except it will not apply to lawsuits actually filed before March 1, 2020. Furthermore, immunity under the law will not apply to an entity whose actions or omissions involve reckless or wanton conduct or intentional misconduct.

2021 Wisconsin Act 4 provides employers substantial protection from civil lawsuits brought by employees, contractors, customers, students, vendors, and family members of these individuals. Despite the new protections, Wisconsin employers should continue to closely monitor and follow guidance from local, state, and federal public health officials on COVID-19 safety and mitigation measures. Failure to do so could constitute evidence of reckless, wanton, or intentional misconduct, which would negate the civil immunity afforded under the Act 4. Such a failure could also trigger claims under OSHA’s general duty clause for failure to provide employees a work environment free from recognized hazards. Employers should also note that employees can continue to seek remedies under applicable workers’ compensation statutes.

Learning To Build A Stronger Teams In A Virtual World

Their positive attitudes carry an edge of lighthearted humor that paints the HR field with a ‘can do’ attitude for tackling challenges and employment law changes.

Andrea Conrad, Numbers 4 Nonprofits Inc

Many of us are starting to think about what our workspaces will look like when we are able to return more consistently or completely to the workplace. These options include returning full time to the office, continuing to work remotely, or a blend of the two.  No matter which option your organization chooses for its new normal, leaders will need to focus time on retaining talent by nurturing workplace culture and offering professional development opportunities to team members.

As you nurture your workplace culture, consider surveying your team members to learn what helped them be successful in their work and connect with their coworkers while working remotely. When considering professional development, evaluate your current practices and how they can be adjusted to fit and support your new work environment. If your team members will be working virtually – fully or partly – consider how you can offer them virtual coaching and professional development. Employees have proven that they can work, grow, and learn successfully in a virtual world.

Life-long learning is important to all of us at Lake Effect, so we have adapted our in-person workshops to engage with a virtual audience. We love training in-person, but we have found that we also connect, engage, and share knowledge as effectively over Zoom or Microsoft Teams. We realize that Zoom fatigue is real, so we have shortened our workshops to 1-2 hour sessions. To continue to support our clients, partners, and their employees, we offer a variety of in-person and virtual workshops in the following areas:

  • Aligning Strategic Plan & HR
  • Coaching
  • Communication
  • Conflict Resolution
  • Crisis Management
  • Culture Building
  • Employee Development
  • Legal Compliance
  • HR Compliance
  • Management Training
  • Performance Management
  • Respectful Workplace
  • Team Engagement

Dane County Public Health Emergency Order #14

Public Health Madison & Dane County (PHMDC) has issued a new public health order, Emergency Order #14, effective March 10, 2021. The new order includes significant changes to the indoor and outdoor capacity limits for gatherings, restaurants, taverns, and sporting events. The order also modifies the protective measure policy required for schools. The primary changes are summarized below and are outlined in PHMDC’s summary of Emergency Order #14.

Gatherings

  • As a reminder, gatherings include exercise classes, meetings, conferences, trainings, sporting events, parties, and other planned events.
  • Indoor gatherings with food or drink are permitted with up to 150 individuals. Indoor gatherings without food or drink are permitted with up to 350 individuals.
  • Outdoor gatherings with or without food or drink are permitted with up to 500 individuals.
  • The capacity limits for indoor and outdoor gatherings do not include employees.
  • Individuals must maintain 6 feet physical distancing at indoor and outdoor gatherings.

Sports

  • All sports must follow the gathering limitations outlined above.

Indoor Capacity Limits at Restaurants and Taverns

  • Indoor capacity at restaurants and other dining facilities is increased to 50% of approved seating capacity.
  • Indoor capacity at taverns is increased to 25% of approved seating capacity.
  • Tables and chairs must still be spaced so that 6 feet physical distancing can be maintained between customers who are not members of the same household.

Mandatory School Policies

  • Schools may need to modify their required protective measure policy and procedure. Under the new order, the protective measure policy and procedure must:
    • Ensure employees are provided with and wear face coverings as required under the general face coverings requirements in the emergency order.
    • Ensure employees maintain 6 feet distancing at all times to the extent possible.
    • When 6 feet distancing is not possible for students, ensure that students and employee groupings are as static as possible. Mixing between groups must be restricted as much as possible.
    • Commons areas such as cafeterias, auditoriums, and gyms can be used as classrooms, to provide food, as childcare and youth settings, and for government functions. Student grouping should be in distinct spaces. Student groupings may not mix with other student groupings.
  • Schools must document employee receipt, acknowledgment, or training on any revised protective measure policy.
  • The requirements for the hygiene policy and procedure and the cleaning policy and procedure have not changed.

The other requirements from previous PHMDC emergency orders, including face coverings, remain in place. You can find Lake Effect’s summaries of the previous orders here.

Lake Effect is here to answer your questions about how local and state public health orders apply to employers. 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 these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

New CDC Guidance Requires Informed Consent for Workplace COVID-19 Testing

On January 21, 2021, the U.S. Center for Disease Control (CDC) issued new guidance for non-healthcare employers who conduct workplace COVID-19 testing. While the CDC previously confirmed that workplace testing is permissible as part of a comprehensive approach to reducing virus transmission, the new guidance clarifies that it should not be conducted without employees’ informed consent. According to the CDC, “informed consent requires disclosure, understanding, and free choice, and is necessary for an employee to act independently and make choices according to their values, goals, and preferences.”

According to the CDC, employers should adopt at least the following measures to promote free decision-making and informed consent to COVID-19 testing in the workplace:

  • Implement safeguards to protect employee privacy and confidentiality.
  • Provide complete and understandable information about how a testing program may impact employees’ lives, such as whether a positive test result or refusal to participate in testing may mean exclusion from work for any period of time.
  • Explain parts of the testing program that would be particularly important to employees as they decide whether to participate (i.e., key reasons that may guide their decision).
  • Inform employees about the testing program in their preferred languages using clear, non-technical terms. Solicit employee input on the readability of the information.
  • Train supervisors and managers on their roles and responsibilities regarding testing and encourage them to avoid pressuring employees to participate in testing.
  • Consider the consent process as an active information-sharing process between the employer and the employee. Throughout the process, encourage and answer employees’ questions, facilitate their understanding, and promote their free choice.

In addition, employers must ensure the disclosures listed below are made to employees:

  • The manufacturer and name of the test.
  • The type of test and its purpose.
  • How the test will be performed.
  • The known and potential risks of harm, discomforts, and benefits of the test.
  • What it means to have a positive or negative test result, including test reliability and limitations and any public health guidance triggered by a particular result.

Many of these are contained in the FDA’s emergency use authorization patient fact sheet for each approved COVID-19 test (scroll down on the linked page to find the test-specific fact sheet), which must be provided to any party receiving that test.

Employers who conduct workplace COVID-19 testing must develop plans to address a host of other testing-related topics and questions, including:

  • Their reasons for testing, frequency of testing, and consequences to employees of testing/non-testing.
  • Locations, scheduling, procedures, and payment for testing.
  • Communication and interpretation of test results, applicable leaves and/or benefit policies.
  • Personal information needed to test and privacy of results.
  • Internal resources for employees who need additional information, assistance, treatment after test procedure.

Given the CDC’s detailed requirements for informed consent and disclosures relating to workplace-based COVID-19 testing, employers in non-healthcare settings should proceed cautiously when considering the implementation of testing programs or protocols. Rather than conduct workplace testing, some employers may be well-advised to minimize administrative burdens and legal exposure by strongly encouraging employees to undergo frequent COVID-19 testing administered by reliable, unrelated third parties.

Governor Evers Extends Statewide Public Health Emergency and Mask Mandate

On January 19, 2021, Governor Tony Evers issued Executive Order #104 extending the statewide public health emergency for another 60 days, and Emergency Order #1 extending the statewide mask mandate until March 20, 2021. This emergency order maintains the same face mask requirements that were included in the previous mandates. Lake Effect’s summary of the requirements can be found on our website. Current Dane County, Milwaukee, and other local mask mandates remain in effect. However, the Governor’s Emergency Order #1 supersedes any less restrictive local order.

Lake Effect is here to answer your questions about state and local public health orders. We continue to monitor important legal and HR developments, including COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Dane County Public Health Emergency Order #12

Public Health Madison & Dane County (PHMDC) has issued a new public health order, Emergency Order #12, effective January 13, 2021. The primary changes are summarized below and are outlined by PHMDC in its comparison of Emergency Orders #11 and #12.

Outdoor Gatherings. Outdoor mass gatherings are permitted with up to 50 individuals, not including employees or members of the same household. Individuals must maintain physical distancing.

Low-Risk Sports. Low-risk sports can be played, including games and competitions, if players maintain six feet physical distancing “to the greatest extent possible.” There are no changes to the restrictions on medium- and high-risk sports.

Drive-in Activities. Drive-in theaters and other drive-in activities may offer outdoor seating if they comply with the mass gathering and other applicable requirements.

The other requirements from previous PHMDC emergency orders remain in place. You can find Lake Effect’s summaries of the previous orders here.

Lake Effect is here to answer your questions about how local and state public health orders apply to employers. 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 these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

EEOC Updates COVID-19 Guidance to Address Vaccinations

On December 16, 2020, the EEOC updated its What You Should Know About Covid-19 and the ADA, the Rehabilitation Act, and Other EEO Laws to address COVID-19 vaccinations. The update confirms that employers may require approved COVID-19 vaccinations when they are available, but they must do so in compliance with EEO laws. Given the uncertain landscape created by the COVID-19 pandemic, the new guidance also specifies that EEO laws will not prevent employers from following applicable guidelines from the CDC or other federal, state, and local public health authorities.

Key take-aways from the EEOC’s updated guidance include the following:

  • A COVID-19 vaccination is not a “medical examination,” nor does it implicate Title II of the Genetic Information Nondiscrimination Act (GINA). (K.1, K.8) The administration of an FDA approved or authorized COVID-19 vaccine by an employer or a third-party contractor does not constitute a “medical examination” for purposes of the ADA. Administering the vaccine likewise does not implicate GINA because it does not involve the use, acquisition, or disclosure of “genetic information” under the statute.
  • Pre-vaccination medical screening questions may be “disability-related” inquiries under the ADA and could implicate GINA. (K.2, K.9) Pre-vaccination screening questions recommended by the CDC are likely to elicit information about a disability. Therefore, if an employer requires employees to receive vaccinations and administers them itself (or contracts directly with a third party to do so), it must show that pre-screening questions are “job-related and consistent with business necessity.” If an employer is administering vaccines itself, pre-vaccination questions that address or elicit genetic information could also implicate GINA.
  • Employers can provide COVID-19 vaccinations (including pre-screening questions) without meeting the ADA “job related/business necessity” standard or implicating GINA under certain circumstances. (K.2) Employers can provide vaccinations while avoiding the legal challenges involved in pre-vaccination screening questions in at least two ways:
    1. the employer can offer vaccinations to employees on a voluntary basis (where answering pre-screening questions is also voluntary, and questions do not seek genetic information); or
    2. the employer can arrange to have vaccinations administered by a third party with whom it does not have a direct contract (i.e., a pharmacy or other outside health care provider).
  • Rather than administer COVID-19 vaccinations, employers can simply recommend employees get the vaccine and then request or require proof that an employee received a COVID-19 vaccination. (K.3) An employer who requests or requires proof of a COVID-19 vaccination is not likely to elicit information about a disability, and the request therefore is not a prohibited “disability-related” inquiry under the ADA. However, the employer should avoid any follow-up questions and caution employees against providing any medical information beyond proof of vaccination.
  • Employers should assess whether an employee with a disability who cannot take a required COVID-19 vaccine poses a direct threat at the worksite. (K.5, K.7) If an employee cannot receive a required COVID-19 vaccine due to a disability, the employer must assess whether that unvaccinated employee poses a “direct threat” at the worksite under the ADA. That assessment must consider four factors:
    1. the duration of the risk;
    2. the nature and severity of the potential harm;
    3. the likelihood that the potential harm will occur; and
    4. the imminence of the potential harm.
  • If an unvaccinated employee with a disability poses a direct threat, the employer must then explore whether reasonable accommodations could eliminate or reduce that threat. (K.5) Employers can rely on CDC recommendations and OSHA guidance to assess potential accommodations. If the direct threat cannot be reduced to an acceptable level, the employer can prohibit the employee from physically entering the worksite. However, the employer may not automatically terminate that employee. Rather, the employer should consider remote work or other off-site arrangements for the unvaccinated employee.
  • Employers must try to accommodate employees who cannot take a required COVID-19 vaccine because of a sincerely held religious belief. (K.6, K.7) If an employer learns that an employee’s religious beliefs prevent them from taking a required COVID-19 vaccine, it must attempt to accommodate that employee if it can do so without undue hardship. If there is no reasonable accommodation possible, the employer may exclude the unvaccinated employee from the worksite. Again, however, this does not mean that the employer may automatically terminate that employee. Rather, the employer should explore other work arrangements and the implications of other federal, state and local EEO laws.

Based upon current EEOC guidance, employers in most industries can alleviate administrative burdens, minimize legal exposure, and best achieve a vaccinated workforce by strongly recommending that employees obtain a COVID-19 vaccine or by providing vaccinations administered by an unrelated third-party healthcare provider. Employers can also lawfully request or require proof of vaccination without collecting any other private health information about their employees.

For additional and information and discussion of COVID-19 vaccinations and what they mean for employers, please see Lake Effect’s prior blog on vaccines.  We will continue to closely monitor all developments in this area and provide you with important updates.

Dane County Public Health Emergency Order #11

Public Health Madison & Dane County (PHMDC) has issued a new public health order, Emergency Order #11, effective Wednesday, December 16, 2020. The primary changes are the loosened restrictions on mass gatherings.

Revised Definition. A mass gathering is now defined as “a planned event such as a concert, festival, meeting, training, conference, performance, show, sporting event, or party. Individuals that are members of the same household or living unit do not count towards the Mass Gathering numbers in their own household or living unit.”

Indoor Gatherings. Indoor mass gatherings are permitted with up to 10 individuals, not including employees or members of the same household. Individuals must maintain face coverings and 6-foot physical distancing.

Outdoor Gatherings. Outdoor mass gatherings are permitted with up to 25 individuals, not including employees or members of the same household. Individuals must maintain physical distancing.

Restaurants. The restriction that no more than six people can be seated at one table has been removed but all individuals at a table must be members of the same household.

Sports, Group Exercise Classes, Meetings, Trainings, and Other Gatherings. Employers should note that the new, loosened mass gathering restrictions set forth above apply to sports, group exercise classes, meetings, trainings, and other gatherings. There are no new restrictions on these activities. For example, indoor low-risk sports may be played with 10 or fewer individuals and maintaining face coverings and 6-foot physical distancing, and outdoor sports may be played with 25 or fewer individuals and maintaining 6-foot physical distancing.

See also this PHMDC reference comparing Order 11 to the previous Order 10.

PHMDC also removed the provisions of its previous emergency order requiring schools be closed to in-person instruction until certain metrics were met, which are currently under review by the Wisconsin Supreme Court. These provisions had been ruled unenforceable under a temporary Wisconsin Supreme Court order.

The other requirements from previous PHMDC emergency orders remain in place. You can find Lake Effect’s summaries of the previous orders here.

COVID-19 vaccines on the horizon: What does it mean for employers?

On December 10, 2020, a Food and Drug Administration (FDA) advisory committee will meet to review Pfizer’s COVID-19 vaccine and recommend whether to authorize its emergency use in the United States. Moderna is also seeking FDA Emergency Use Authorization (EUA) for its COVID-19 vaccine, and dozens of other pharmaceutical companies are in the process of developing and seeking approval for vaccines. As the country awaits word on FDA authorizations, governmental bodies and other organizations are preparing for the complexities involved in distributing a COVID-19 vaccine and prioritizing who will receive the first doses.

No doubt, many employers welcome the prospect of a safe and effective COVID-19 vaccine in hopes that remote employees can return to the workplace and safely resume serving clients, customers, and partners. However, this scenario assumes that most employees will get a COVID-19 vaccine when it becomes available. It also raises a difficult question: Can an employer require employees to get a COVID-19 vaccine as a condition of continued employment?

Current FDA guidance:
Federal and state authorities have not directly answered this question. A member of the FDA advisory panel recently stated that vaccines authorized under the FDA’s EUA (as opposed to through the normal approval process) cannot be mandated. This is consistent with 2017 FDA guidance stating that recipients of EUA products must be informed that they have the option to accept or refuse the product and what the consequences of refusal may be. However, there is some dispute as to whether the FDA’s prior position on this issue would control if the Secretary of Health and Human Services adopts a contrary position as to EUA COVID-19 vaccines.

Current EEOC guidance:
Even if initially authorized under an EUA, COVID-19 vaccines will likely be approved through the FDA’s normal approval process in the near future. Employers will then face the same question: can they require employee vaccinations? Current EEOC guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, updated in March 2020, considers the issue in the context of the influenza vaccine (specifically recognizing that there was no vaccine for COVID-19 at that time). In the case of the influenza vaccine, the EEOC guidance states that “employers should consider simply encouraging employees to get the [vaccine] rather than requiring them to take it.”

Required accommodations:
However, the EEOC guidance also suggests that a mandatory vaccination requirement (influenza, COVID-19, or otherwise) for all employees is permissible as long as employers make exceptions in two instances:

  1. to provide a reasonable accommodation to an employee with an ADA-covered disability that prevents them from taking a vaccine; and
  2. to provide a reasonable accommodation to an employee with a sincerely held religious belief, practice, or observance that prevents them from taking the vaccine, as required under Title VII.

Presumably, reasonable accommodations in lieu of a mandatory COVID-19 vaccine could include permitting telework, increased use of PPE for the employee and co-workers, modification of job duties (i.e., removing public interactions), or transfer to a different office space. In any case, providing an employee accommodation must not cause an undue hardship to the employer. Because COVID-19 is so easily transmitted, and because the EEOC recognizes it as a pandemic and a “direct threat” to employee safety under the ADA (as does OSHA), employers might be granted greater latitude in difficult accommodation cases.

Other considerations:

Although a mandatory COVID-19 vaccination policy may be permissible under current law, this should not end the inquiry for employers seeking to maximize their workforce potential during these challenging times. Beyond its legality, an employer should determine whether implementing a mandatory vaccination policy is necessary or even advisable based upon the nature, needs, and unique culture of its organization. Relevant considerations may include:

  • The frequency and duration of employee interactions with vulnerable populations and/or members of the general public (how critical are employee inoculations to the survival and success of the business?)
  • Cost(s) associated with a mandatory employee vaccination policy/program (time, expense, goodwill of the public and employees)
  • The impact of existing policies, collective bargaining agreements, or past practices on the introduction of a mandatory vaccination policy
  • The potential impact of a mandatory vaccination policy on workplace injury and safety claims
  • The logistics required to administer a mandatory vaccination policy/program on or off-site (including necessary forms, a clear process for requesting accommodations, and protocols for retaining confidential vaccination information; staggering vaccinations may also be required as potential side-effects could render employees unable to work for several days)
  • The availability, cost, and efficacy of other mitigation measures used to prevent the spread of COVID-19 (including an assessment of the measures used to date)
  • Alternative ways to encourage and incentivize employees to voluntarily get the COVID-19 vaccine (i.e., rewarding employees who get the vaccine with added benefits under a wellness program)

Employers should also consider conducting surveys to gather employee feedback before formulating a COVID-19 vaccination policy. Some employees may have specific safety concerns about the FDA’s approval process for new COVID-19 vaccines. Other employees may be skeptical about the medical community or generally concerned about vaccines based upon historical events or personal experiences. Inviting employees to express opinions and concerns can build trust and enhance employee morale. It can also inform an employer’s decision-making and communication strategy as it prepares to welcome more employees back to the workplace, regardless of whether or not an employer adopts any COVID-19 vaccination policy. If an employer decides to proceed with a mandatory vaccine policy, communicating with employees and other stakeholders about the underlying rationale and implementation would be a critical next step.

Stay tuned:
Given the current legal landscape, employers can begin planning the most effective ways to protect their employees and the general public when a COVID-19 vaccine becomes widely available. However, it is entirely possible that we will see new guidance on mandatory vaccinations from federal and/or state authorities after the FDA completes its authorization process.

Lake Effect will continue to closely monitor all developments in this area and provide you with important updates.

Lake Effect is here to answer your questions about protecting your workforce and business consistent with state and federal law. We continue to monitor important legal and HR developments, including COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

CDC Updates Guidance on COVID-19 Quarantine

On December 2, 2020, the Centers for Disease Control and Prevention (CDC) updated its guidance on how long a person should quarantine after exposure to someone with COVID-19. “Quarantine” keeps someone who has been in close contact with a known COVID-19 case away from others to prevent the spread of the virus.

The CDC’s current recommendation is that an exposed individual should quarantine for 14 days after last exposure. The CDC continues to endorse its existing 14-day quarantine recommendation. However, the CDC’s new guidance recognizes that reducing the length of quarantine in some instances may make it easier for people to quarantine by reducing economic hardship if they cannot work during that time. A shorter quarantine period may also reduce stress on the public health system.
Under its new guidance, the CDC provides two additional, abbreviated options for the length of quarantine. Assuming a person does not develop any symptoms of the virus:

  • Quarantine may end on the 10th day after exposure without testing
  • Quarantine may end on the 7th day after exposure with the receipt of a negative test result

After ending quarantine under either abbreviated option, a person should continue to monitor for COVID-19 symptoms until 14 days after exposure, wear a mask, stay 6 feet away from others, and take other recommended mitigation measures. If symptoms develop at any time, the person should immediately self-isolate.

Finally, the CDC guidance reaffirms that local public health authorities make final decisions about how long quarantines should last in their respective communities, based on local conditions and needs. Businesses and organizations should thus be aware of the CDC’s updated guidance, but they should continue to follow the specific quarantine recommendations of their local health departments.

Lake Effect is here to answer your questions about protecting your workforce and complying with CDC guidelines, state, and local public health orders. We continue to monitor important legal and HR developments, including COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, 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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