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Share the Love with Your Employees

It’s Valentine’s Day, the day we show a little extra love to those who are special to us. After the last two years, we all need a few more candy conversation hearts. Take a few moments today to take care of yourself and encourage your team to do the same. As we move through 2022, continue to practice self-care and provide your staff with resources to support their mental wellness, engagement, and professional development.

Take time for self-care. Leaders, we see you taking care of your staff, customers, and families. Thank you for all you do! Please keep your tank filled and battery charged so you can continue to take care of others. Take a moment for you!

Tell your staff you appreciate them. Everyone wants to be seen and appreciated. A heartfelt thank you can go a long way. You know your staff the best, so make the message meaningful to each recipient.

Provide your team members with the resources they need. More than ever before, employees are seeking flexible work schedules, hybrid work environments, professional growth, a supportive workplace culture, and relevant benefits. Ask your employees what they need to be successful in their roles while balancing their personal responsibilities. Here are a few ideas to bring that to life:

Remind your team members to take time for self-care – and remind them again
Lead by example by taking care of yourself
Implement a flexible work schedule
Consider a 4-day work week or reduced schedule
Review workloads, including the leaders within your organization
Develop a buddy system to check in on each other, especially in a remote or hybrid work environment
Create an environment where it feels safe to say “I need help on a project” or “I need a break to step away for an hour”
Encourage staff to volunteer in the community to support causes that are important to them
Post your Employee Assistance Plan (EAP) access information so it is easily accessible
Remind your employees about some of the hidden perks within your benefits plans: discounts on massage, credits for workouts, wellness resources and apps, and the like
Partner with local nonprofits to provide mental wellness resources to your staff
Implement or expand a coaching and development program to help employees align their professional development goals with your organization’s strategic initiatives
Practice empathic leadership, fostering a sense of meaningful connection and belonging

During the past two years, the Lake Effect team has been doing something together every month. We have done virtual 5K’s, laughed while attempting to do virtual workouts together, shared reading suggestions, and even tried cooking the same recipe together via Zoom. This month, we are challenging ourselves to do three things every day and we would LOVE you to join us in the challenge: do something each day for yourself physically, mentally, and professionally.

As we close on this Valentine’s Day, Jane is supporting a local restaurant, Sheila is heading out for a run, Holly is making memories with her kids, Leann is taking a vacation with her family, Jenn is volunteering her time delivering flowers, and Tricia is playing outside soaking up the sunshine. Tell us how you are taking care of yourself this month.

Human Resources - 02/14/2022

OSHA Formally Withdraws COVID-19 Vaccination and Testing ETS

On the heels of the US Supreme Court’s recent ruling blocking enforcement of its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), OSHA issued a statement formally withdrawing the ETS as an enforceable temporary standard effective January 26, 2022. OSHA stated that it will continue to pursue the ETS as a proposed rule and focus on finalizing a permanent COVID-19 Healthcare Standard. OSHA continues to encourage COVID-19 vaccination of workers to minimize workplace health risks posed by the virus.

For a complete discussion and history of this issue, please see Lake Effect’s prior blogs on the ETS and the Supreme Court's recent decision.

Lake Effect is here to answer your questions about COVID-19 compliance and will continue to monitor important legal and HR developments, as well as 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.

COVID-19 Resources / Legal - 01/25/2022

Milwaukee Institutes New Mask Ordinance

Starting January 22, 2022, Milwaukee’s new mask ordinance will go into effect until March 1, 2022. While similar to the previous Milwaukee Cares mask ordinance which expired on June 1, 2021 (see Lake Effect’s prior blog), the new ordinance has some distinct differences.

COVID-19 Resources / Legal - 01/20/2022

Supreme Court Decision on Vaccine Mandate

Supreme Court: OSHA Exceeded Its Authority by Requiring Large Employers to Adopt Mandatory Vaccination Policies, But Healthcare Providers Can Require Employee Vaccinations

On January, 13, 2022, The US Supreme Court issued its much anticipated decision on two Biden Administration initiatives aimed at increasing COVID-19 vaccination rates across the nation: (1) OSHA’s Emergency Temporary Standard, which requires large employers (100+ employees) to adopt mandatory vaccination policies; and (2) the Center for Medicare and Medicaid Services’ (CMS’) Interim Final Rule, which requires certified healthcare entities to mandate employee vaccinations. For a detailed discussion of OSHA’s ETS for large employees, please see Lake Effect's prior blog on this topic.

As to the first, the Supreme Court reinstated a nationwide stay of OSHA’s ETS, finding that parties challenging OSHA’s vaccine mandate will likely prevail on the merits of the case. The Supreme Court explained that OSHA is tasked with regulating workplace health and safety. However, allowing OSHA to regulate the hazards of Americans’ daily lives would significantly expand its regulatory authority in a manner not authorized or intended by Congress. Under the Supreme Court’s ruling, the case will be sent back to the Sixth Circuit for a final decision on the merits, and OSHA cannot enforce the ETS in the interim. Given the Supreme Court’s decision, however, it is highly unlikely that the Sixth Circuit will uphold the ETS.

As to the second initiative, the Supreme Court upheld CMS’ ability to enforce its vaccination mandate for certified health care providers. The Court found that the US Secretary of Health and Human Services is authorized to impose detailed conditions on the receipt of Medicare and Medicaid funds, and those conditions are often aimed at preventing and controlling the transmission of communicable diseases. The Court concluded that requiring healthcare providers to mandate employee vaccinations as one such condition is well within the authority of CMS.

What Should Employers Do Now?
At this time, large employers need not implement OSHA’s detailed vaccination and testing requirements, and it is highly unlikely that the ETS will be upheld at all. However, employers of any size may lawfully implement their own vaccination and testing policies, as long as accommodations for eligible employees are granted in accordance with Title VII (religion) and the ADA (disability).

CMS can enforce its Interim Rule as to covered healthcare provider employers nationwide. Although further litigation on the Rule is likely, covered healthcare providers should prepare to meet upcoming compliance deadlines in January and February 2022.

Lake Effect is here to answer your questions about federal, state, and local regulations that impact employers across all industries. We continue to monitor important legal and HR developments, as well as 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.

COVID-19 Resources / Legal - 01/14/2022

CDC Shortens Recommended COVID-19 Isolation and Quarantine Periods

On December 27, 2021, the US Centers for Disease Control and Prevention (CDC) revised recommendations for people who test positive for or are exposed to COVID-19. The updated guidelines reflect recent evidence that transmission of the now-prevalent Omicron variant typically occurs 1-2 days prior to the onset of symptoms and 2-3 days after. The recommendations are also aimed at returning people to work as quickly and safely as possible in the face of nationwide staffing shortages. The CDC’s updated recommendations provide:

After positive COVID-19 test (regardless of vaccination status)	Isolate at home for 5 days If you have no symptoms or symptoms have fully resolved after 5 days, you may leave your home but continue to mask for 5 more days.
After COVID-19 exposure for people who are not vaccinated or who are more than 6 months out from their second dose of vaccine and not yet boosted	Quarantine for 5 days and then mask for 5 more days If quarantine is not feasible, mask for 10 days. *Note:* the day of exposure is considered day zero (0)
After COVID-19 exposure for people who are boosted or completed the primary Pfizer or Moderna vaccine series within the last 6 months, or who completed the J&J vaccine series within the last two months	Mask for 10 days *Note:* the day of exposure is considered day zero (0)
After COVID-19 exposure (regardless of vaccination status)	If possible, take a COVID-19 test on day 5 following exposure. If you develop symptoms at any time during the quarantine or masking period, get a test and begin isolation at home. *Note:* the day of exposure is considered day zero (0)

The new CDC recommendations should provide some relief to the many US employers dealing with staffing challenges related to COVID-19.

COVID-19 Resources - 12/28/2021

I-9: Extension to Remote Validation

** Update December 2021**

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have extended the flexibility in complying with requirements related to Form I-9 until April 30, 2022. See our earlier blog for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9.

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.

Human Resources / Legal - 12/23/2021

Dane County Face Covering Emergency Order #6

Public Health Madison & Dane County has issued Face Covering Emergency Order #6. The new order is effective January 3, 2022 and remains in place until February 1, 2022. The only change from the previous Order #5 (see Lake Effect’s summary of the previous orders here) is the extension of time.

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.

COVID-19 Resources / Legal - 12/20/2021

EEOC Clarifies When COVID-19 Condition May Be a “Disability” Under the ADA

The EEOC updated its COVID-19 Technical Assistance Guidance on December 14, 2021. The Guidance’s new Subpart N discusses when COVID-19 or a post-COVID condition may qualify as an ADA covered “disability” triggering the statute’s anti-discrimination and reasonable accommodation requirements. Key points include:

Not every COVID-19 related impairment constitutes a disability under the ADA, and the determination must be made on a case-by-case basis.
Like a person with any other medical condition, a person with a COVID-19 condition may have a “disability” under the ADA in one of three ways:
1. The person has an “actual” disability: a physical or mental impairment that substantially limits a major life activity. This requires an individualized assessment of the effects of COVID-19 on the specific individual.
2. The person has a “record of” a disability: a history or record of an actual disability; or
3. The person is “regarded as” having a disability: the person is subject to an adverse action because of an actual or perceived impairment, unless the impairment is both transitory and minor.
Someone with COVID-19 who is asymptomatic or who has mild cold or flu-like symptoms that resolve in a matter of weeks is not substantially limited in a major life activity and thus does not have an “actual” disability under the ADA.
An individual with COVID-19 conditions that last or are expected to last for several months, such as ongoing neurological issues, breathing difficulties, heart palpitations, or gastrointestinal pains associated with “long COVID,” may be substantially limited in a major life activity and have an “actual” disability under the ADA. This requires an individualized assessment.
A person who has or had COVID-19 can have “record of” a disability if they have a history of symptoms that substantially limited one or more major life activities. Again, this requires an individualized assessment.
A person may be “regarded as” an individual with a disability under the ADA if they are subjected to an adverse employment action because they had non-minor symptoms of COVID-19 or minor symptoms that were expected to last more than six months.
Regardless of whether a person’s initial case of COVID-19 is itself an ADA covered “disability,” they may develop related health complications that qualify as disabilities under the ADA, such as heart inflammation, reduced brain function, or diabetes.
A person must establish they have “actual” or “record of” an ADA covered disability to be eligible for a reasonable accommodation from their employer, and the employer may ask for supporting medical documentation before granting any accommodation request.
Note that the EEOC’s COVID-19 Technical Assistance Guidance Subpart D confirms that an employer is not required to accommodate an employee without an ADA covered disability based on the disability-related needs of a family member or other person with whom they are associated.

The EEOC Technical Assistance guide includes additional details and examples. Determinations about whether an individual with a COVID-19 related condition has an ADA-covered disability or is entitled to a reasonable accommodation are fact-specific and must be made on a case-by-case basis. Contact your partners at Lake Effect for help with these complex situations.

COVID-19 Resources / Legal - 12/15/2021

Dane County Face Covering Emergency Order #5

Public Health Madison & Dane County has issued Face Covering Emergency Order #5. The new order is effective November 27, 2021. The only changes from the previous order (see Lake Effect’s summary of the previous orders here) are the following:

A new exemption for fully vaccinated persons in enclosed spaces with other fully vaccinated persons:

“When in an enclosed space with individuals who are fully vaccinated. Individuals are fully vaccinated two (2) weeks after their second dose in a 2-dose vaccine series for COVID-19 (such as Pfizer-BioNTech’s or Moderna’s vaccine) or two (2) weeks after their first dose in a single-dose vaccine series for COVID-19 (such as Johnson & Johnson’s Janssen vaccine).”

An extension of the face covering requirements until January 3, 2022.

COVID-19 Resources / Legal - 11/23/2021

The Uncertain Fate of OSHA’s ETS Mandating Employer Vaccination Policies

What is the status of OSHA’s ETS? As Lake Effect previously reported, OSHA issued an Emergency Temporary Standard earlier this month requiring employers with 100 or more employees to implement mandatory vaccination or testing/masking policies. Read our prior blog for a full discussion of OSHA’s guidelines and requirements. In response to the ETS, employers across the country began to prepare policies in advance of the initial December deadlines.

Almost immediately, states, employers, and other groups across the country filed lawsuits challenging OSHA’s authority to issue the ETS. On November 5, 2021, a three-judge panel of the U.S. Court of Appeals for the 5^th Circuit temporarily halted the mandate. On November 12, 2021, the full 5^th Circuit Court of Appeals issued an order barring OSHA from implementing and enforcing the ETS pending further court proceedings. In response, OSHA announced that it had “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” In the latest legal development, the Judicial Panel of Multidistrict Litigation consolidated at least 34 lawsuits across the country challenging the ETS (including the 5^th Circuit case) before the 6^th Circuit Court of Appeals based in Cincinnati. A three-judge panel from the 6^th Circuit will be randomly assigned to hear all pending legal challenges to OSHA’s ETS.

What does this mean for employers? For now, OSHA will cease implementation and enforcement of the ETS, and prior December and January deadlines are no longer in effect pending further court action. However, this does not necessarily mean employers should delay or stop planning for vaccination policies. Keep in mind:

The Biden Administration and OSHA are confident in OSHA’s authority to issue workplace safety-related regulations, and they will vigorously defend the enforceability of the ETS.
Despite the 5^th Circuit’s initial stay, the 6^th Circuit could reject legal challenges and uphold OSHA’s authority to issue the ETS.
Regardless of the outcome of legal challenges to the ETS, employers of any size have the discretion to implement mandatory vaccination and/or testing/masking policies in their workplaces, as long as they comply with Title VII and ADA accommodation requirements.
Employers who are federal contractors or health care providers must comply with vaccination mandates under the Federal Contractor Mandate and CMS Medicate Omnibus Staff Vaccine Mandate Interim Final Rule. These mandates are unaffected by the current ETS litigation.

On A Related Note, You May Have Collective Bargaining Obligations. On November 10, 2021 (prior to consolidation of country-wide lawsuits challenging the ETS) the National Labor Relations Board (NLRB) Acting Associate General Counsel issued a memorandum outlining employers’ obligations to bargain with unions about issues related to the ETS. She confirmed that covered employers must bargain with unions about whether to implement a vaccine mandate or implement a vaccine and testing/masking policy. In addition, employers must bargain about the effects of the ETS policy on employees, including whether to provide leave to employees who test positive or how to discipline employees who refuse to comply with an ETS policy. Employers with represented employees should keep these obligations in mind as they consider and implement any vaccination policy.

Contact your partners at Lake Effect for help navigating vaccination issues in the workplace during this uncertain time. We will continue to closely monitor all legal developments relating to the ETS.

COVID-19 Resources / Legal - 11/17/2021

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info@le-hrlaw.com

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