#bekind #staywell #grantgrace

For most of us, Memorial Day weekend has always served as the unofficial kick-off to the summer season, a long weekend spent with family and friends enjoying time together and creating memories. But the reality of life with COVID-19 has put many of these plans on hold and makes leaving the house feel like an act of bravery.

Over the past few months, the Lake Effect team has been sharing with you the latest government updates and guidance. Today, we would like to take a few moments to recognize the true meaning of Memorial Day and honor those who have lost their lives in active military service, a true act of bravery.

Next, we want to help you officially kick off the Summer of 2020 with some old school good vibrations! In March, when the reality of living in a world with COVID-19 became clear, our team came up with three phrases signifying how we wanted to face the uncertain times ahead:

  • Be Kind
  • Stay Well
  • Grant Grace

Be Kind: COVID-19 has impacted everyone in different ways. We will have good days and bad, but any act of kindness we can provide each other, even a stranger, goes a long way toward getting through these days together. This weekend, how can you make someone smile by sharing your kindness?

Stay Well: Not only should we monitor our temperatures, practice social distancing, and wash our hands frequently, but we should be mindful of our mental health as well. It is important that we stay aware of our current mental state, and care for ourselves and each other. There have been times when some of us had to take a personal” timeout,” and other times when we just needed to be there for each other (of course, via phone or Microsoft Teams). This weekend, soak up some sun, have an impromptu picnic with the family at one of our lovely parks, take advantage of the rain that is in the forecast and binge on Netflix all day, or make more bread – whatever fills your tank mentally and physically.

Grant Grace: The challenges we face today are many. For some, social distancing has led to feelings of isolation; for others, it has led to crowded homes with children home from school all day or college kids reluctantly returning home early; it has converted dining room tables or kitchen counters into unintended classrooms and home offices. We have cancelled weddings and graduations, and we have postponed memorials and funerals to say goodbye to loved ones. No matter how hard we try to stay strong, we are not perfect. This is a stressful time for all of us. Our quirks shine brighter than ever when we are stressed. Be gentle with yourself and with others. We’ll get through this together.

So, enjoy your holiday weekend in whatever form it takes. #bekind #staywell #grantgrace

OSHA reinstates normal reporting and investigation standards for COVID

On May 19, 2020, the Occupational Safety & Health Administration (OSHA) reversed an earlier enforcement policy for recording cases of COVID. As Lake Effect reported in April, OSHA had announced that it would not enforce its record-keeping requirements on employers to make COVID “work-relatedness” determinations, except when (1) there was objective evidence that an employee’s exposure to COVID-19 was work-related and (2) that evidence was reasonably available to the employer. At that time, OSHA noted that it may be difficult for employers to determine if an employee with COVID-19 contracted COVID-19 at work. Yesterday, OSHA revised that policy.

OSHA will now increase in-person worksite inspections and enforce COVID record-keeping requirements for all employers. Acknowledging the difficulty in determining where an employee may have contracted COVID, OSHA reminded employers that a case of COVID in the workplace is a recordable illness. Employers must record cases of COVID if all of the following are true:

  • An employee has a confirmed case of COVID-19;
  • The employee’s case of COVID is considered to be work-related*; and
  • The illness involves one or more of the recording criteria, including medical treatment beyond first aid or days away from work.

*Note that an illness is considered to be work-related “if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment” unless an exception applies.

Keep in mind that employers with 10 or fewer employees or in certain low hazard industries are exempt from OSHA reporting requirements unless the injury or illness results in hospitalization, amputation, or loss of an eye.

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace and will continue to provide our clients with updates as they are available. Please visit 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.

SBA and Treasury Release PPP Loan Forgiveness Application

On May 15, 2020, the Small Business Administration (“SBA”), in consultation with the Department of the Treasury, released the PPP Loan Forgiveness Application and related forms and instructions. The application and forms instruct borrowers how to calculate and apply for loan forgiveness and specify the supporting documentation to be submitted to lenders. Key aspects of the application and instructions include the following:

  • Borrowers must calculate payroll costs over the course of a single, consecutive eight-week period, but they may choose to include those costs either:
    • During the “Covered Period,” which begins on the PPP loan disbursement date and ends 56 days later; or
    • During an “Alternative Covered Period,” which begins on the first day of the borrower’s regular pay period following the PPP loan disbursement date and ends 56 days later.
  • Borrowers may include eligible payroll and nonpayroll costs paid or incurred during the Covered Period or the Alternative Covered Period, as long as costs incurred during the period are paid by the next regular billing date, and any eligible cost is only counted once.
  • PPP loan forgiveness conditioned upon borrower’s retention of the same number of Full Time Equivalent (“FTE”) employees will not be reduced if:
    • Borrower meets the requirements of the FTE Reduction Safe Harbor by restoring FTE levels by no later than June 30, 2020; or
    • With respect to any position for which the Borrower made a good-faith, written offer to rehire an employee during the Covered Period or Alternative Covered Period which was rejected by the employee; or
    • With respect to any FTE employee who, during the Covered Period or Alternative Covered Period, was fired for cause, voluntarily resigned, or voluntarily requested and received a reduction in hours.
  • Borrowers must submit to their lender detailed documentation including bank account statements or payroll service provider reports, payroll tax forms, payment receipts documenting contributions to health insurance and other benefits, and documents supporting nonpayroll expenses such as mortgage interest payments, rent or lease payments and utility payments.
  • Borrowers must retain, but are not required to submit to their lender, all records relating to the PPP loan and forgiveness applications for 6 years after the date that the loan is forgiven or repaid in full.
  • There is specific guidance on calculating “Average FTE” from employees who work less than 40 hours/week (See Table Instructions of Schedule A Worksheet), reducing the amount of forgiveness by the amount of EIDL Advance (See line 11 of the Calculation Form), and limiting at eight weeks’ worth of 2019 compensation the amount of owner-employee's or self-employed individual/general partner’s income, capped at $15,385 per person (See item 1 of the Representations and Certifications).

The PPP Loan Forgiveness Application is detailed and requires a substantial amount of specific, supporting documentation. Therefore, employers should work closely with their lenders, accountants, payroll providers, and tax advisors to ensure that the process is completed thoroughly and accurately.

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace and will continue to provide our clients with updates as they are available. Please visit 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.

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.

Evers Administration Releases Specific Guidance to Prepare for Reopening

On May 8, 2020, the Evers administration released specific guidance on “turning the dial” toward reopening. The guidelines cover such issues as employee health and hygiene; social distancing and other protective measures in the workplace; cleaning and disinfection practices; physical distancing of employees and equipment; employee training, support and communication; and customer/public health and safety considerations. There is general guidance for all organizations to follow, as well as specific guidance for the following industries:

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace. Please keep watching for blogs and emails from your Lake Effect team for important 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 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.

Recovery Readiness Guide For Employers

As businesses prepare to reopen or resume full operations amid COVID-19, there will be new challenges and questions. No one has all the answers, but Lake Effect can help you anticipate some of the issues that are likely to arise as you reopen and/or return more employees to the worksite. We do not know when business will return to “normal,” but employers can put measures in place to be successful and compassionate as we introduce our employees and workplaces to our “new normal.”

Lake Effect has prepared detailed guidance to help employers welcome their teams. Below is an outline of those steps; if you would like to schedule a time to discuss a plan tailored to your organization, please let us know.

As always, the attorneys and HR professionals at Lake Effect HR & Law are available to advise you as you develop plans to restore operations and welcome team members back to the workplace. We look forward to helping our partners bounce back. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Steps to Welcome Team Members Back to Work in the Wake of COVID-19

STEP 1: MAKE THE DECISION TO RESTORE OPERATIONS

Who will decide?
How will you notify employees?
How will the return be implemented?

STEP 2: RESTORE, RECALL, AND REHIRE EMPLOYEES WHO WERE FURLOUGHED, LAID OFF OR TERMINATED

Furloughed Employees
Laidoff Employees
Terminated Employees
Work-share Program
Other considerations

STEP 3: CHOOSE EFFECTIVE SCHEDULING STRATEGIES

Continue telework for some
Ensuring social distancing
Other considerations

STEP 4: PLAN FOR ENHANCED CLEANING IN THE WORKPLACE

Cleaning plans and practices
Changes in utilization of space and equipment
Possible limitations on plans

STEP 5: EVALUATE PHYSICAL WORKPLACE, PROTECTIVE GEAR AND OTHER SAFEGUARDS

Changes to workspace and protective gear
Changes to interactions and gatherings

STEP 6: ASSESS OF EMPLOYEE HEALTH

Screening and/or testing
Logistics of testing

STEP 7: ADDRESS EMPLOYEE CONCERNS AND NEEDS

Communicate all post-quarantine changes and expectations
Monitor employees’ wellbeing
Assess employee morale
Prevent harassment and discrimination

STEP 8: CONSIDER & MONITOR POTENTIAL ISSUES UNDER ADA, OSHA, AND NLRA

ADA Issues
OSHA issues
NLRA issues

STEP 9: ANTICIPATE EMPLOYEE LEAVE REQUESTS

STEP 10: TRAIN SUPERVISORS AND MANAGERS

STEP 11: REVIEW AND UPDATE EXISTING POLICIES

STEP 12: PLAN AHEAD

Emergency Order #34: Interim Order to Turn the Dial

On April 27, 2020, the Evers Administration released Emergency Order #34 entitled “Interim Order to Turn the Dial.” In this order, the administration expands slightly the permissible business operations set forth in Emergency Order #28, “Safer at Home Order.” This Order takes effect on Wednesday, April 29, 2020 at 8:00 a.m.

While Section 14 of “Safer at Home” permitted curb-side pick-up as part of Minimum Basic Operations, this Order adds “curb-side drop-off of goods or animals for the purpose of having those goods or animals serviced, repaired, or cared for by the business.” Staff within the business or facility is still limited to 1 person in a room or confined space and payment must be made by phone or online (i.e., no transfer of cash or check and no signature for receipt). All arrangements must be scheduled in advance, and customers may not enter the business or facility to ensure proper social distancing.

This Order also expands Minimum Basic Operations to include rental of recreational equipment “including but not limited to boats, kayaks, canoes, paddle boats, golf carts, snowmobiles, and ATVs.” The staff count, payment methods, scheduling requirements, and prohibition against customers entering the business or facility mirror those set forth above for curb-side drop-off. All rental equipment must be thoroughly cleaned been uses.

Finally, the Order expands Minimum Basic Operations to include car washes, provided the car wash is entirely automatic or self-service. All high-touch surfaces must be cleaned between use if possible, or as frequently as practicable.

Consistent with its “Badger Bounce Back” plan, the Evers Administration is progressing towards its stated goal of gradually reopening businesses and operations across the state. As always, the attorneys and HR professionals at Lake Effect HR & Law are available to advise you as you develop plans to restore operations and welcome team members back to the workplace. We look forward to helping our partners bounce back. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Badger Bounce Back

On April 20, 2020, the Evers Administration released Emergency Order #31 entitled “Badger Bounce Back.” In this order, the administration sets forth a plan for a phased reopening of businesses so that Wisconsinites can get back to work.

Based upon recent federal guidelines, the Badger Bounce Back plan specifies criteria that will enable Wisconsin to begin the gradual process of reopening for business. Criteria include: reductions in cases and COVID-19 symptoms over an extended period of time; sufficient hospital capacity; a robust testing program; adequate personal protective equipment levels; and contact tracing capabilities.

In preparation for fully reopening their doors, employers are encouraged to rely upon federal, state and local regulations and guidance, informed by industry best practices and the WEDC, to develop and implement policies relating to: physical distancing and protective equipment; employee temperature checks and symptom screening; testing, isolating and contact tracing; sanitation; use and disinfection of common and high-traffic areas; business travel; and other best business practices to ensure a safe workplace.

It is clear that this will be a complex and gradual process. It will require Wisconsin employers to be patient, diligent and innovative. Rest assured, the attorneys and HR professionals at Lake Effect HR & Law are available to advise you as you develop plans to restore operations and welcome team members back to the workplace. We look forward to helping businesses move beyond “Safer-at-Home” to “Badger Bounce Back.” 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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