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.

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.

Dane County Public Health Emergency Order #10

UPDATE 11/22/20

On November 20, 2020 PHMDC amended the definition of “mass gathering” under Amended Emergency Order #10. A mass gathering is now “any gathering of individuals that are not members of the same household or living unit.”

UPDATE 11/17/20

Starting Wednesday, November 18, in Dane County, all indoor mass gatherings are banned and all outdoor mass gatherings are limited to no more than 10 individuals under Public Health Madison & Dane County (PHMDC) Emergency Order #10. Sports activities, group exercise classes, meetings, and trainings are subject to the same mass gathering restrictions. The order expires on December 16.

As a reminder, a mass gathering is “a planned event with a large number of individuals in attendance, such as a concert, festival, meeting, training, conference, performance, show, or sporting event. Individuals that are members of the same household or living unit do not count towards the mass gathering numbers.”

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.

Employees Must Notify Their Employers of Positive COVID-19 Result

According to a November 4, 2020 blog post, Public Health Madison & Dane County (PHMDC) will no longer notify employers that an employee has tested positive for COVID-19 unless the employee works for a school, or a childcare, healthcare, or congregate living facility. Instead, employees are responsible for notifying their employer if they tested positive, and working with their employer to identify other employees, customers, or clients who have been in close contact with the employee who tested positive. This is a significant shift in Dane County’s contact tracing due to the high number of positive tests in the community.

Dane County employers should follow guidance from PHMDC if an employee tests positive. Employers should then, to the best of their ability, notify other employees, customers, or clients who had close contact with the affected employee. As a reminder, see our prior blog for the new “6-15-24-48 analysis” in determining who has had “close contact.”

Lake Effect is here to answer your questions about protecting your employees and complying with 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.

Wisconsin Judge Reinstates Emergency Order Restricting Indoor Gatherings

Update 11/06/2020

The Governor’s Emergency Order #3, which limited indoor gatherings throughout Wisconsin, expired on November 6, 2020. On the same day, the Wisconsin Supreme Court ruled that a lower court should have issued an injunction blocking enforcement of the Emergency Order.

Update 10/26/2020

The statewide indoor capacity restrictions in Emergency Order #3 are not enforceable, at least for now. On October 23, 2020, a Wisconsin court of appeals reinstated a temporary injunction blocking enforcement of the statewide restrictions. The court of appeals decision follows conflicting rulings from two district courts on whether Emergency Order #3 should be enforced pending the outcome of the lawsuits filed against Governor Evers’ administration.

This is a constantly evolving issue. Employers should ensure they are following the current state and local public health restrictions applicable to their organization. Summaries of the public health orders can be found here.


10/20/2020

On October 19, 2020, Barron County Circuit Judge James C. Babler reinstated Emergency Order #3, which limits indoor gatherings throughout Wisconsin to no more than 25% of the total occupancy limit for the room or building. DHS Secretary Andrea Palm’s Emergency Order #3, effective from October 8 until November 6, 2020, exempts schools, polling locations, political rallies, churches, and some businesses, such as grocery stores. On October 14, 2020, a Sawyer County district court had temporarily blocked the Order in response to a lawsuit from state Tavern League members, who argued that Secretary Palm did not have authority to pass the statewide limitations.

Immediately following Judge Babler’s decision to uphold the statewide restrictions, Governor Evers issued a press release stating, “This critically important ruling will help us prevent the spread of this virus by restoring limits on public gatherings. This crisis is urgent.” See Lake Effect’s prior blog on Emergency Order #3.
As a reminder, employers must comply with any local public health orders such as those in Dane County that impose stricter requirements than those set forth in Emergency Order #3. See Lake Effect’s summary of local health orders.

The Lake Effect team will continue to monitor important COVID-related updates such as these from federal, state, and local authorities. Please keep watching for blogs and emails from us for important legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

WI Emergency Order #3 – Statewide Limits on Indoor Public Gatherings

Indoor public gatherings are limited statewide starting on October 8, 2020 at 8:00 a.m. and ending on November 6, 2020 under Emergency Order #3. The Wisconsin Department of Health Services (DHS) Secretary-designee Andrea Palm issued the order on October 6, 2020.

Emergency Order #3 restricts “public gatherings” to 25% or less of the established indoor capacity limit of a building or room. This applies to any business that is open to the public, including restaurants, retail stores, and office lobbies. If the building or room has no capacity limit (e.g., a home), public gatherings are limited to no more than 10 people. The order defines a “public gathering” as an “indoor event, convening, or collection of individuals, whether planned or spontaneous, that is open to the public and brings together people who are not part of the same household in a single room.”

The order places no restrictions on outdoor gatherings, such as outdoor seating areas at a restaurant or bar; on indoor spaces that are not open to the public, such as a manufacturing plant or an office building; or on invitation-only indoor gatherings.

Employers in counties or cities with their own local public health orders and guidance (such as Dane, Milwaukee, Outagamie, and Winnebago Counties) will need to determine the restrictions applicable to their organization. DHS’s Frequently Asked Questions clarifies that Emergency Order #3 supersedes the requirements in local orders that are less restrictive. Conversely, requirements in local orders that are more restrictive will continue to be enforced. For example, a restaurant in Dane County will be required to comply with the applicable restrictions in Dane County’s PHMDC Emergency Order #9 (see Lake Effect’s blogs on the PHMDC orders) and the 25% indoor capacity restriction in the new statewide Emergency Order #3.

Exempt from the order are:

  • Most childcare settings
  • Placements for children in out-of-home care, such as foster and group homes
  • 4K-12 schools
  • Institutions of higher education
  • Health care and public health operations
  • Human services operations
  • Public infrastructure operations
  • State and local government operations
  • Churches and other places of religious worship
  • Political rallies, demonstrations, and other speech protected by the First Amendment
  • State and federal facilities

The Lake Effect team will continue to monitor important COVID-related updates such as these from federal, state, and local authorities. Please keep watching for blogs and emails from us for important legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Governor Evers Extends Statewide Mask Mandate and Public Health Emergency

On September 22, 2020 Governor Evers released two orders. Emergency Order #1 amends his earlier order to extend the statewide face mask mandate to November 21, 2020. This emergency order does not change the face mask requirements that were included in the previous mandate. Lake Effect’s summary of the requirements can be found here. Dane County and other local mask mandates also remain in effect. However, the Governor’s Emergency Order #1 supersedes any local order that is less restrictive.
Governor Evers also released Executive Order #90 declaring a public health emergency and designating the Department of Health Services as the lead agency to respond to the emergency. This order effectively extends the public health emergency previously declared in Executive Order #82.

The Lake Effect team will continue to monitor important COVID-related updates such as these from federal, state, and local authorities. Please keep watching for blogs and emails from us for important legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Public Health Madison Dane County Issues Emergency Order #9

UPDATE

On September 1, 2020, PHMDC released Emergency Order #9 Amendment. The only change made to Emergency Order #9 was to allow for in-person instruction for students in any grade with a disability and/or with an IEP who may need to receive in-person instruction. This change is reflected in paragraph 4.d. on page 5 of the order.

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Prohibits In-Person Instruction for Grades 3-12

Effective Monday, August 24, 2020, public and private schools in Dane County may not hold in-person student instruction for students in third to twelfth grades under Public Health Madison and Dane County (PHMDC) Emergency Order #9. Schools may conduct kindergarten to second grade classes in-person with certain restrictions, including a requirement that the school also offer virtual learning options for its K-2 students. In order to open, schools must also adopt and distribute to staff PHMDC’s COVID response plan, which has not yet been posted.

Emergency Order #9 also modifies requirements applicable to child and youth care; expands the County’s face mask requirements; clarifies restrictions on religious groups; and changes the use of “bar” to “tavern,” as defined under Wisconsin statutes. The other requirements of PHMDC Emergency Order #8 remain unchanged.

School Closures

  • All school buildings and grounds – public and private – may open for in-person student instruction only for grades K-2. These schools must also offer a virtual option for students.
  • Although not included in the Emergency Order, PHMDC stated that it may consider reopening grades 3-5 for in-person instruction if Dane County sustains at or below a 14-day average of 39 cases per day for four consecutive weeks. For PHMDC to consider reopening grades 6-12 for in-person instruction, Dane County must sustain at or below a 14-day average of 19 cases per day for four consecutive weeks. PHMDC also noted that if there are more than 54 average cases per day over a two-week period, they would consider closing all schools to in-person instruction. We anticipate that PHMDC would provide orders when metrics permit reopening certain grades, or closing all grades.
  • Under revised requirements, all schools must:
    • Implement a hygiene policy and procedure (Section 4.d.i.), and a cleaning policy and procedure(Section 4.d.ii.)
      • PHMDC has not changed these policy requirements
    • Implement a written protective measure policy and procedure (Section 4.d.iii.) that includes several new requirements to ensure that:
      • When indoors and on buses, students age 5 and older and employees wear face masks and, to the greatest extent possible, maintain at least six feet distance from others.
      • Students and employees who cannot wear a face mask (based on the exceptions set forth in Section 2.c.) maintain at least six feet distancing from others when indoors and on buses.
      • Students and employees, to the greatest extent possible, maintain at least six feet distance from others when outside.
      • Student and employee groupings are as static as possible by having the same group of students stay with the same employees as much as possible. Mixing between groups must be restricted as much as possible.
      • While common areas (such as cafeterias and gyms) may be open, student groupings should be in distinct spaces within the common areas and not mix with one other.
    • Implement PHMDC’s action plan for COVID-19 cases
      • PHMDC will post this plan here when it is available
    • Document employee receipt, acknowledgment, or training on the cleaning, hygiene, and protective measure policies and the COVID action plan (Section 4.d.iv).
    • Post PHMDC’s workplace requirements poster in a location where it is easily viewed by all employees.
      • Employers can email this to all its employees if all or some of your school staff is working from home.

Modified Restrictions on Child and Youth Care

  • Groups or classrooms must be limited to 15 or fewer children regardless of the children’s ages.
    • Under previous orders, the limit was 25 children if they were all 13 years or older.
  • Organizations must also require children who are 5 years or older to maintain at least six feet apart to the greatest extent possible.

Expanded Face Coverings Requirements

  • A face covering is still required for all individuals age 5 or older. Children 2-5 years old are encouraged to wear a face covering. Note that PHMDC has clarified that children under the age of 2 should never wear a covering.
  • In addition to being required indoors, in line to enter a building, or in a vehicle with individuals outside of your home, face masks are now also required outdoors at a restaurant or tavern.
  • As a reminder, all organizations are required to post PHMDC’s “Face Covering” sign, or a similar sign, that is visible upon entering the property.
    • This posting requirement includes residential properties that have shared common indoor spaces, e.g. hallways, lobbies, mailrooms.
  • Recall that a face covering is defined as “a piece of cloth or other materials that is worn to cover the nose and mouth completely.” This may include a bandana, cloth face mask, a disposable or paper face mask, a neck gaiter, or a religious face covering. It does not include a face shield, mesh mask, a mask with holes or openings, or a mask with vents.

Religious Group Gatherings

  • PHMDC clarified that religious entities are exempt from mass gathering requirements only for religious services and practices.

Violations of this order are considered ordinance violations and are enforceable by any local law enforcement official.

The Lake Effect team will continue to monitor important updates such as these from Dane County and other counties across the state. Please keep watching for blogs and emails from us for important legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

FFCRA & FLSA Updated Guidance From The Department Of Labor

The Department of Labor (DOL) recently updated its COVID-19 guidance related to the Families First Coronavirus Response Act (FFCRA) and the Fair Labor Standards Act (FLSA). This guidance from DOL addresses questions employers may confront as their communities face new public health orders and in-person school closures and delays.

FFCRA Guidance

As a reminder, employees may be eligible for up to 80 hours of leave under FFCRA’s Emergency Paid Sick Leave Act (EPSLA) and up to 12 weeks of leave under FFCRA’s Emergency Family and Medical Leave Expansion Act (EFMLEA). See our FFCRA Overview for the particular requirements of each leave program.

Employers should also note that a district court in New York recently struck down several significant FFCRA regulations, including those EPSLA regulations related to employees on temporary layoff or furlough and the expansive scope of the healthcare provider exemption for both EPSLA and EFLMLEA leaves. The impact of the ruling is not clear at this point, and we expect more information in the near future. We will keep you posted in our blogs about any changes to FFCRA as a result of that legal process and other lawsuits that are currently pending. In the interim, employers should contact legal counsel before denying a FFCRA leave request.

DOL’s guidance on FFCRA includes almost 100 frequently asked questions about the leave programs. Three that are of particular significance relate to virtual school and returning employees:

  • Online Schools Are “Closed”
    • Under the guidance, a school that has moved to an online platform for instruction is “closed” for purposes of FFCRA. (Question #70) This means that employees may be eligible to take up to a total of 14 weeks of continuous or intermittent EPSLA and EFMLEA leave to care for a child whose school is operating virtually. Although not specifically addressed by DOL, this guidance would also apply to schools operating a hybrid model. Under the hybrid model, the school is “closed” on those days in which a student cannot attend the physical school but open on those days when in-person instruction is offered.
    • If the school offers an option for virtual or in-person instruction, the school is not “closed” and FFCRA leave is not available for caregivers who choose the virtual option.
    • Employees who used some of their leave in the spring or summer when schools were closed due to COVID-19 are entitled to use their remaining amount in the fall if they are otherwise eligible.
  • Requiring a Negative COVID-19 Test Before Returning to Work
    • According to DOL, employers may require that an employee test negative for COVID-19 before returning to work from FFCRA leave as long as this requirement applies to all employees. (Question #94)
    • However, requiring a negative test is not mandatory. Dane County employers should note that PHMDC now strongly recommends against requiring employees to test negative before returning to work. Instead, employers may rely on the CDC (or your local public health department) guidelines for monitoring symptoms over a period of time.
  • Employers May Not Discriminate Based on Use of or Eligibility for FFCRA Leave
    • Employers may not use an employee’s request for FFCRA leave, or an assumption that the employee will request leave, to make any employment decision, including whether to recall an employee from furlough. (Question #97)

FLSA Guidance

DOL added important clarifications for non-exempt and exempt employees in its updated FLSA guidance. The updates include:

  • Flexible Scheduling for Non-Exempt Employees
    • To allow “needed flexibility” during the pandemic, employers that allow their non-exempt employees to work remotely with flexible schedules do not need to count all of the time between the first and last work activity during the day as hours worked. Instead, employers only need to pay for those hours actually worked. (Question #15)
    • This flexibility allows “windowed work” for non-exempt employees. Windowed work is breaking up a workday into blocks – or windows – of business and personal time while working from home.
  • Changes to Exempt Employees’ Job Duties and/or Salaries
    • As long as employers continue to pay the required minimum weekly salary of $684, employers may temporarily require exempt employees to perform non-exempt job duties and may prospectively reduce exempt employees’ salaries due to economic reasons related to COVID-19. (Questions #16 and #19)
    • Note that exempt employees must be paid their full salary for any week during which they perform any work, with the exception of their first and last workweeks.

We are closely monitoring the impact of COVID-19 on the workplace. 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.

WI Public Health Emergency and Statewide Mask Mandate

On July 30, 2020, Governor Evers released two Executive Orders: Executive Order #82 declares a Public Health Emergency through September 28, 2020; Emergency Order #1 mandates face coverings statewide starting August 1, 2020. Please also see Frequently Asked Questions to clarify the mask mandate.

Individuals ages 5 and older will be required to wear face coverings in all indoor or enclosed spaces, other than their private residences, and when others who are not members of the individual’s household or living unit are in the same room or enclosed space. The Order also encourages individuals to wear masks “in other settings, including outdoors when it is not possible to maintain physical distancing.” Emergency Order #1 provides the following clarifying definitions:

  • Enclosed space” is defined as “a confined space open to the public where individuals congregate, including but not limited to outdoor bars, outdoor restaurants, taxis, public transit, ride-share vehicles, and outdoor park structures.”
  • Face covering” is defined as “a piece of cloth or other material that is worn to cover the nose and mouth completely.” Further, the Order notes that “[a] ‘face covering’ includes but is not limited to a bandana, a cloth face mask, a disposable or paper mask, a neck gaiter, or a religious face covering. A ‘face covering’ does not include face shields, mesh masks, masks with holes or openings, or masks with vents.”
  • Physical distancing” is defined as “maintaining at least six feet of distance from other individuals who are not members of your household or living unit.”

Individuals do not need to wear face coverings:

  • at a private residence with only the members of their household or living unit;
  • outside when able to physically distance;
  • indoors when no one else is present in a room or enclosed space;
  • when eating or drinking;
  • when in a car alone or with members of their household or living unit;
  • when communicating with someone who is deaf or hard of hearing, and communicating while wearing a mask is not possible;
  • while sleeping;
  • while swimming or being on duty as a lifeguard;
  • when giving a religious, political, media, educational, artistic, cultural, musical, or theatrical presentation for an audience, so long as there is at least 6 feet between the presenter and other individuals;
  • when working if wearing a face covering poses a safety risk, as determined by government safety guidelines or regulations;
  • when there is a need to temporarily remove a face covering to confirm identity, such as entering a bank, credit union, or other financial institution or when having to show that they match their identification card when buying alcohol;
  • when engaging in activities where federal or state law or regulations prohibit wearing a face covering.

Emergency Order #1 also notes exemptions from the mask mandate in the following circumstances:

  • children under the age of 2, but children between the ages of 2 and 5 are encouraged to wear face masks when physical distancing is not possible;
  • individuals who have trouble breathing;
  • individuals who are unconscious, incapacitated, or otherwise unable to remove the face covering without assistance;
  • individuals with medical conditions, intellectual or developmental disabilities, mental health conditions, or other sensory sensitivities that prevent the individual from wearing
    a face covering. Of note, in such instances, individuals are not required to carry and provide documentation supporting such conditions and inability to wear a mask; and
  • incarcerated individuals.

Emergency Order #1 will be enforced by local and state officials, with violations possibly resulting in civil fines up to $200.
Please keep in mind that Dane County and other local mask mandates also remain in effect.
The Lake Effect team will continue to monitor important COVID-related updates such as these from federal, state, and local authorities. Please keep watching for blogs and emails from us for important legal updates and HR best practices. 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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