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.

IRS Increases Flexibility for Employer Health Plans, FSAs and Dependent Care Programs

On May 13, 2020, the IRS released new guidance giving employers greater flexibility in the administration of sponsored Sec. 125 cafeteria plans (including health insurance, flexible spending and dependent care plans), whether insured or self-insured. Under the new rules, an employer may amend plan documents to permit employees to make new health care elections or change current elections mid-year on a prospective basis (outside of the customary open enrollment period). An employer may also give employees more time to apply unused medical flexible spending and dependent care account dollars, recognizing that cancellation of medical procedures and school/day care closures during the pandemic have dramatically affected employee balances in these accounts.

Under the new guidance, employers may permit eligible employees covered by a Sec. 125 cafeteria plan to do the following:

  • Employer Sponsored Health Plans:
    • Allow employees to enroll in health care insurance plan on a prospective basis, even if the employee initially declined to elect coverage under the employer-sponsored health coverage.
    • Revoke an existing election and make a new election to enroll in different coverage sponsored by the same employer on a prospective basis.
    • Revoke an existing election, provided that the employee attests in writing that they are enrolled, or will immediately enroll, in other health coverage not sponsored by the employer. (The guidance provides a sample attestation.)
  • Medical Flexible Spending Plans and Dependent Care Spending Plans:
    • Revoke an election, make a new election, or decrease or increase an existing election applicable to a health flexible savings account or dependent care assistance program. (Employers can limit the election changes to be no less than amounts already reimbursed to the employee.)
    • Revise their plans to provide options for employees who have unused amounts at the end of the 2020 calendar year in one of two ways:
      • Grace Period: Allows plan participants to incur expenses and use the remaining funds in the account no later than March 15, 2021.
      • Carry over: Allows plan participants to carry over amounts up to $550 into their plan for the 2021 year.
      • Note: An employer would need to choose either the Grace Period or the Carry Over option, they cannot do both.

Keep in mind that the increased flexibility allowed by the new IRS guidance is optional, not required. To implement any of the above changes, an employer must adopt amendment(s) to applicable Sec. 125 cafeteria plans on or before December 31, 2021, and those amendments may be effective retroactively to January 1, 2020. The employer must also inform all eligible employees of any changes to the Sec. 125 cafeteria plans. Employers should work closely with their benefits brokers and health plan providers to make any of these changes.

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.

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.

Summary of WI Act 185 – COVID-19 Relief Package

On Friday April 15, 2020, Governor Evers signed into law Act 185, a comprehensive COVID-19 relief package. Key provisions for employers include the following:

  • Waiver of 1-week waiting period for unemployment insurance (UI) benefits: One week waiting period for UI benefits will not apply with respect to benefit years that begin after March 12, 2020 and before February 7, 2021. (Section 38: 108.04). The federal government will provide funding for this benefit.
    • Recall that, under the CARES Act, the federal government expanded the maximum UI benefits period from 26 weeks to 39 weeks and provided an additional $600/week in UI benefits. For a good summary, see https://dwd.wisconsin.gov/uiben/caresact/.
  • COVID-Related UI claims charged to WI’s balancing account, not employer’s account: The Department of Workforce Development shall, when processing initial claims for UI benefits, determine whether a claim is related to the public health emergency declared on March 12, 2020 by Executive Order 72. If a claim is so related, the benefits shall be charged to the fund’s balancing account, rather than to the employer’s own account. (Section 50: 108.07). That state’s share of any benefits paid on a public health emergency-related claim shall also be charged to the fund’s balancing account, rather than the employer’s account. (Section 51: 108.14). This means that COVID-related claims will not adversely affect an employer’s UI tax rate.
  • Temporary removal of requirement to provide copy of employee’s personnel file: During public health emergency, employer is not required to provide copy of personnel records within 7 working days after request; nor is employer required to provide opportunity for inspection of personnel records. (Section 35: 103.13 (2m))
  • Presumption of Workers Compensation injury for first responders contracting COVID-19: Injury to first responder found to be caused by COVID-19 will presumed to be caused by the person’s employment for purposes of workers’ compensation benefits (can be rebutted by specific evidence that injury was caused by exposure outside of work). (Section 33: 102.03).
  • WEDC to Develop Plan to Support Major Industries: No later than June 30, 2020, the WEDC shall submit to the legislature and governor a report that includes a plan for providing support to the major industries in the state that have been adversely affected by COVID-19 public health emergency, including tourism, manufacturing, agriculture, forest products, construction, retail and services. (Section 105: (26m))

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. 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.

DOL Issues Temporary Rule Regarding Paid Leaves Available Under FFCRA

On April 1, 2020, the U.S. Department of Labor’s Wage and Hour Division posted a Rule (to be final when published on 4/6/20) issuing regulations under the Families First Coronavirus Response Act (“FFCRA”). The regulations provide further clarity as to how the leave provisions of the Expanded Family and Medical Leave Expansion Act (“EFMLEA”) and Emergency Paid Sick Leave Act (“EPSLA”) will be implemented. Key provisions include:

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