Dane County Public Health Emergency Order #13

Public Health Madison & Dane County (PHMDC) has issued a new public health order, Emergency Order #13. The new order, effective February 10, 2021, includes significant changes to the face covering requirements, indoor and outdoor capacity limits, and permitted sports activities. The primary changes are summarized below and are outlined in PHMDC’s comparison of Emergency Orders #12 and #13.

Face Coverings

  • Face coverings must be secured with ties, ear loops, or elastic bands that go behind the head and fit snuggly against the side of the face. Cloth face masks must be made with two or more layers of tightly woven fabric. PHMDC suggests holding up the face mask to a light. If light does not pass through, the fabric is sufficiently “tightly woven.” Bandanas, single layer neck gaiters, face shields, goggles, scarves, ski masks, balaclavas, shirt or sweater collars, and masks with slits, exhalation valves, or punctures are not face coverings under the order.
    • The updated face covering requirements reflect guidance from the CDC.
  • In addition to settings included in previous orders, face coverings are also required outdoors while actively participating in sports and/or while attending an outdoor gathering of more than 50 individuals.
    • Face coverings are not required outdoors while participating in a sport if it is played individually or with six feet physical distancing at all times.

Gatherings

  • PHMDC has replaced the term “mass gatherings” with “gatherings.
  • The definition of gatherings has not changed. As a reminder, it includes meetings, conferences, exercise classes, trainings, sporting events, parties, and other planned events.
  • Indoor gatherings with food or drink are permitted with up to 25 individuals. Indoor gatherings without food or drink are permitted with up to 50 individuals.
  • Outdoor gatherings with food or drink are permitted with up to 100 individuals. Outdoor gatherings without food or drink are permitted with up to 150 individuals.
  • The capacity limits for indoor and outdoor gatherings do not include employees or individuals living in the same household.
  • Individuals must maintain 6 feet physical distancing.

Child Care

  • Childcare centers and 4K are no longer limited to 15 children per classroom or group. All other requirements remain in place, including 6 feet physical distancing to the greatest extent possible for children 5 years and older.

Youth Settings

  • Youth classes and groups (i.e., any group or class that does not constitute childcare or 4K) are subject to the indoor and outdoor gathering limits outlined above. All other requirements from the previous emergency order remain in place, including 6 feet physical distancing to the greatest extent possible.

Sports

  • All individuals – athletes, coaches, referees, spectators, and others – not actively participating in the sport must maintain 6 feet physical distancing at all times.
  • Proper face coverings must be worn in compliance with the face covering requirements outlined above.
  • Sports that can maintain physical distancing at all times must follow the indoor and outdoor gathering limits outlined above. All other sports are limited to 25 individuals indoors and 100 individuals outdoors. These limits do not include employees.
  • All sports’ organizing entities must:
    • develop and implement hygiene, cleaning, and protective measure policies, with specific provisions included in the emergency order (see Section 4.d. of the order);
    • document receipt, acknowledgment, or training on the policies;
    • implement PHMDC’s Sports Action Plan; and
    • ensure all individuals participating in the sports activity are aware of the above policies and action plan.

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.

Governor Evers Extends Statewide Public Health Emergency and Mask Mandate

On February 4, 2021, the Wisconsin Legislature struck down the existing statewide mask mandate and public health emergency. In response, Governor Tony Evers issued Executive Order #105, which declares a new state of emergency and public health emergency for 60 days or until it is revoked or overturned. Governor Evers also issued a new Emergency Order #1 implementing once again a 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 here. The Governor’s new Emergency Order #1 supersedes any less restrictive local order.

OSHA Recommends Measures to Reduce Workplace Spread of COVID-19

Responding to a directive from the Biden administration, OSHA posted new guidance on January 29, 2021 to help non-healthcare employers identify COVID-19 risks and implement effective measures to minimize its spread in the workplace. The guidance is not a standard or regulation, and it creates no new legal obligations. It is advisory in nature, containing recommendations and detailed descriptions of existing safety and health regulations. However, it will likely be one yardstick used to measure compliance with OSHA’s “General Duty Clause,” which requires employers to provide workers with a workplace free from recognized hazards that cause or are likely to cause death or serious harm.

The new guidance specifies that implementing a workplace COVID-19 prevention program is the most effective way to reduce its spread at work. An effective program includes such elements as:

  • Assigning a workplace coordinator responsible for COVID-19 issues.
  • Identifying where and how employees might be exposed at work.
  • Identifying a combination of measures to limit the spread of COVID-19 at work including separating and sending home potentially infected employees, implementing physical distancing and barriers, requiring face coverings, improving ventilation, and using applicable PPE, as well as good hygiene and cleaning/disinfection practices.
  • Providing reasonable accommodations or modifications to workers at higher risk of severe illness.
  • Effectively communicating with employees about COVID-19 in a language they understand and providing them with guidance on screening and testing.
  • Educating and training employees on COVID-19 policies and procedures.
  • Minimizing the negative impact of quarantine and isolation on workers by allowing telework or work at alternative locations where possible.
  • Recording and reporting COVID-19 infections and deaths consistent with applicable OSHA requirements. See Lake Effect’s blogs on this issue.
  • Establishing a process for employees to anonymously express concerns about COVID-19 hazards and ensuring that they are not discriminated or retaliated against in any way.
  • Making COVID-19 vaccines available to employees and requiring all employees to follow preventive practices, regardless of whether they are vaccinated.  See Lake Effect’s blog on this issue.

This is not an exhaustive list of OSHA’s new recommendations, and this new guidance contains detailed information about each aspect of an effective workplace COVID-19 prevention program. Employers should work closely with legal counsel to understand all requirements and implement a COVID-19 workplace prevention program consistent with this new OSHA guidance. Lake Effect is here to help you through this process and ensure that you are taking all possible steps to provide a workplace free from the recognized hazards created by the COVID-19.

Biden Administration Impact on the Workplace

Just one week into his administration, President Biden has signaled that he will take a fresh look at current issues affecting American workers and workplaces. His recent executive orders and memoranda include the following actions:

  • Halt Final Rules governing tip pools and independent contractors: This Executive memorandum stays pending final rules that have been published but which had not yet taken effect to allow the Biden Administration to review their impact. This also directs that any rules which had been sent to the Federal Register but had not yet been published must be immediately withdrawn for review. This results in a stay of the Independent Contract Final Rule and the new Tip Pooling Rule. As a result, the Department of Labor has withdrawn 3 opinion letters related to those rules. See Lake Effect’s previous blogs on the Independent Contractor Final Rule, the Tip Pooling Final Rule, and two of the tip pool opinion letters.
  • Expand COVID-related unemployment benefits: This Executive Order permits employees who refuse work based on COVID health-related concerns to receive unemployment benefits.
  • Promote racial equity: This Executive Order directs the Biden administration to conduct equity assessments of its agencies and reallocate resources to “advanc[e] equity for all, including people of color and others who have been historically underserved, marginalized and adversely affected by persistent poverty and inequality.”
  • Reaffirm gender equity: This Executive Order expands protections against discrimination based on sex in federal agencies to explicitly include sexual orientation, gender identity, and gender expression. This does not have a direct impact on private employers, but does follow the U.S. Supreme Court decision in Bostock v. Clayton County, Georgia (see Lake Effect’s blog here).
  • Enhance COVID-related workplace safety: This Executive Order requires administrative agencies to take “swift action to reduce the risk that workers may contract COVID-19 in the workplace.” This will most likely result in action from OSHA setting forth “science-based guidance to help keep workers safe from COVID-19 exposure, including with respect to mask-wearing; partnering with State and local governments to better protect public employees; enforcing worker health and safety requirements; and pushing for additional resources to help employers protect employees.”

The attorneys and HR professionals at Lake Effect will continue to closely monitor the Biden administration’s executive actions, legislative developments, and their impact on workplaces.

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.

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

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