Public Health Madison Dane County Issues Emergency Order #9


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.


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 or 1-844-333-5253.

Guidance Regarding Executive Order’s Payroll Tax Deferral

In early August, President Trump signed an Executive Memorandum directing the Secretary of the Treasury to defer the payment of payroll taxes from September 1 until December 31, 2020 for employees earning less than $4,000 per pay period (or $104,000 per year). Late in the day on August 28, 2020, the Treasury Department and IRS released guidance on the issue.

Employers may opt to temporarily stop deducting eligible employees’ payroll tax payments, from September 1 until December 31, 2020. The deferred payroll tax payments represent employees’ shares of Social Security taxes, in the amount of 6.2% of wages. Only Congress can change or forgive tax liability. If Congress does not enact legislation to forgive the deferred tax liability, employers would have to make these payroll tax payments or collect them from employees during the period January 1 to April 30, 2021 (“payback period”).

This payroll deferral presents potential challenges for both employees and employers. Unless the employer pays the employees’ portion of the tax payments that are owed, employees would pay the deferred tax payments along with their customary payroll tax payments in the first few months of 2021. This would result in double payment (12.4% of wages) during the payback period. While many employees may welcome the short-term cash gain in 2020, others fear the double financial hit in 2021. Employers share the concern this may be too financially burdensome for employees. Another potential issue for employers would be handling repayment for employees who are no longer employed, whether through termination, layoff, or resignation. Tax deferrals may also decrease Social Security funding. Given the first September payrolls start tomorrow, it is unlikely that any payroll systems are equipped to handle this change.

We encourage employers to tread carefully on this issue. Before implementing the tax deferral, employers should consult with their HR departments to assess employee interest and with their accountants to assess the tax risks. After that, communication with employees is critical to apprise them of any changes and the impact on their pay both now and in 2021.

Lake Effect HR & Law will continue to monitor developments related to COVID-19 relief. Please keep watching for blogs and emails from us for important legal updates and HR best practices. Contact us at 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 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 or 1-844-333-5253.

DOL Updates FMLA Forms

On July 16th, the Department of Labor (DOL) updated Family and Medical Leave Act (FMLA) forms which employers may use to administer FMLA leaves within their organizations. The FMLA does not require the use of any specific form or format but using the forms can simplify leave administration and facilitate compliance for employers.

In the press release, the DOL announced that the forms collect the same information but are “simpler and easier to understand for employers, leave administrators, healthcare providers, and employees seeking leave.” Among the changes announced are boxes that can be checked instead of requiring written responses and electronic signature features. As the DOL stated, “[t]he changes reduce the amount of time it takes a healthcare provider to provide information, and help leave administrators review and communicate information to employees more directly and with greater clarity, reducing the likelihood of violations.”

The DOL also updated its guidance related to FMLA leave related to COVID-19. The two updates are:

  • Telemedicine visits are considered in-person visits for purposes of establishing a serious health condition (Guidance, Question #12)
  • Employers may require an employee returning from FMLA to get a COVID-19 test as long as all employees returning to the office are also required to get a test (Guidance, Question #13)

Note: The FMLA covers employers with 50 or more employees for at least the past 20 weeks. It also applies to public agencies, regardless of the number of employees, and to elementary and secondary schools, both public and private. The federal FMLA only applies to employees who have worked for a covered employer for a minimum of 12 months, although these 12 months do not need to be consecutive. Additionally, the employee must have worked at least 1,250 hours for the employer during the previous 12 months at a site where the employer has 50 or more employees within a 75-mile radius. See the differences between federal and WI FMLA here. If you are unsure if you are an FMLA covered employer, please contact us as noted below.

Lake Effect is here to answer your FMLA questions and/or help administer this process within your organization. Contact us at or 1-844-333-5253.

Emergency Order #8: Required Face Mask Poster for Customers and Visitors

Public Health Madison and Dane County (PHMDC) released another important update to Emergency Order #8. PHMDC is now requiring that all businesses post PHMDC’s Face Masks Required for Customers and Visitors sign at any entrances of their building(s). This is designed to clarify that the PHMDC mask mandate applies to all customers and visitors, as well as employees, other than those who may have a qualifying disability. This requirement is effective immediately and is included under section 4(i) of Emergency Order #8. This new, required sign appears to replace PHMDC’s prior Face Masks for Customers Required sign which was encouraged, but not required, in Emergency Order #8.

We want to remind employers once again of the other existing and required PHMDC postings and policies:

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 or 1-844-333-5253.

Milwaukee Cares Mask Ordinance Effective July 16, 2020

Building Owners and Operators Responsible for Ensuring Compliance

Effective tomorrow, July 16, 2020, the Milwaukee Cares Mask Ordinance will require Milwaukee residents age 3 and older to wear face coverings in indoor public places and outside whenever they are within 6 feet of other people who do not live in their households. The ordinance provides some exceptions, including for:

  • children under the age of 3
  • persons with certain health conditions or disabilities
  • persons obtaining or rendering services such as dental services or medical treatments, where it is not feasible to wear face coverings
  • persons whose religious beliefs prevent them from wearing face coverings
  • persons present in government facilities closed to the public, institutions of higher education, and other public and private schools or childcare facilities that have a mitigation strategy approved by the Commissioner of Health
  • circumstances where it is necessary to verify an individual’s identity

The Milwaukee Cares Mask ordinance is unique in that it holds building owners and operators responsible for ensuring compliance. Any building owner or operator who permits a person to violate the ordinance in their public building is subject to fines of $50-$500 and may face license revocation or closure by the Milwaukee Health Department, which is charged with enforcing the ordinance. The ordinance also specifies that a building owner/operator has the right to refuse entry or service to any person who fails to comply with the face covering mandate.

Dane County’s mask mandate requiring that all individuals 5 and older wear face coverings in every indoor space has been in effect since July 13, 2020. See our blogs on PHMDC Emergency Order #8 for specifics on that mandate.

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

PHMDC Emergency Order #8: Clarifications

We have some important clarifications of the mask requirements under Public Health Madison and Dane County (PHMDC) Emergency Order #8. During the Madison Chamber of Commerce’s Lunch (UP)date: Moving Forward with Forward Dane on July 9, 2020 (click link to see the webinar video), Chamber President Zach Brandon and various members of the PHMDC leadership provided important clarifying information about the mask requirements:

  • Employees must wear masks “whenever they could come in contact with others,” regardless of the distance between them. This means that even if employees are 6 or more feet apart in an office, workplace, or warehouse, they must wear masks because they could come in contact with one another. (See minutes 10:30 – 15:30)
  • If employees occupy individual offices or are alone in a conference or other room with a closed door and close the door, they may remove their masks. Organizations should establish a policy that if an employee’s or conference room’s door is closed, other employees should knock and request entry, then the employee inside can “mask up” and grant the other employee access.
  • Employees in cubicles need to wear a mask at all times, regardless of social distancing because they may come in contact with others by moving around their workspace or while others are walking past. The same holds true for employees who work significant distances apart in a warehouse or manufacturing facility, as they may come in contact with others at any time. (See minutes 10:30 – 15:30)
  • Employers must provide each employee with at least one (1) mask that covers the employee’s mouth and nose snugly. PHMDC anticipates this will be a cloth mask. If the employee loses or damages the mask, it is the employee’s responsibility to replace the mask. An employee may also wear their own mask if it satisfies the fit and coverage requirements by snugly covering the nose and mouth. Importantly, the PHMDC staff noted that face shields are not a substitute for masks, as they have been shown to provide insufficient protection. (See minutes 16:00 – 18:00)
  • If an employee indicates that they are unable to wear a mask due to having an ADA-qualifying disability, the employee must provide medical documentation to support that request. Then, following the customary ADA Interactive Dialogue Process, the employer and employee should engage in discussion to determine a reasonable accommodation. It is not a reasonable accommodation to be in the workplace without a mask. A reasonable accommodation may be to allow the employee to work remotely, to assign new job duties or location, or to provide Family Medical Leave. (See minutes 33:00 – 34:00)
  • If an employee refuses to comply with the mask order for other than an ADA-qualifying reason, the employer should remind staff of the PHMDC Order. If the employee still refuses, the employer may send the employee home without pay and follow the normal process to discipline an employee who fails to comply with your workplace rules. (See minutes 18:30 – 19:30)
  • If a customer/client refuses to wear a mask, a business owner may initially ask if the person is unable to wear a mask due to a disability and then must engage in an interactive discussion of accommodation of policies. This does not mean the customer can enter without a mask, it means that the business owner and customer develop a reasonable accommodation and provide alternate service such as bringing the product or food curbside, provide it to go, deliver the product to their home, etc. If the customer declines the reasonable alternative, that satisfies the interactive process and the business can refuse entry. In the unfortunate event that the discussion becomes confrontational, the business may contact authorities. (See minutes 24:00 -29:30)

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 or 1-844-333-5253.

Dane County Public Health Emergency Order #8

Addendums to this post:

Emergency Order #8: Required Face Mask Poster for Customers and Visitors

PHMDC Emergency Order #8: Clarifications

Starting Monday, July 13 at 8:00 a.m., individuals over 4 years old must wear a mask when inside and around people they do not live with under Public Health Madison and Dane County (PHMDC) Emergency Order #8. PHMDC also launched a webpage dedicated to providing additional information about the new order and face masks generally.

Most of the requirements in Emergency Order #7 remain in place. However, there are two important changes for employers:

  • All individuals age 5 or older must wear a face mask (or other face covering) that covers their nose and mouth
    • This face covering requirement applies when individuals are:
      • In any enclosed building where other people, except people who live together, could be present
      •  In line to enter any indoor space
      • In any public transportation, paratransit vehicle, taxi, private car service, ride-sharing vehicle, or any other vehicle for hire
    • Individuals may remove their face covering:
      • While eating or drinking
      • When communicating with an individual who is deaf or hard of hearing, and communication is impossible through other means
      • While obtaining a service that requires the temporary removal of a face mask
      • If necessary to confirm their identity
      • When a federal or state law prohibits the face covering
    • The following individuals are exempt from the requirement to wear a face covering:
      • Individuals who cannot wear a face mask due to government safety guidelines that apply to their work
      • Individuals with a medical condition, mental health condition, or disability that prevent them from wearing a face covering
    • Organizations can, but are not required to, post PHMDC’s model “masks required” sign
  • Employers must revise their required protective measure policy
    • Organizations are required to implement hygiene, cleaning, and protective measure policies. Emergency Order #8 only changes the protective measure policy, which now must ensure:
      • Individuals are at least six feet from others whenever possible
      • Employees are provided with and wear face coverings at all times when indoors
        • Note: This means employers must provide masks to their Dane County employees.
    • Note that employers are required to document that employees receive, acknowledge, or are trained on the policy. For example, an email with the revised policy sent with read receipt likely satisfies this requirement. If you would like to schedule a meeting with us to discuss the policy requirements, prepare a customized policy and/or training for your organization, please contact us.

Violations of this order are considered ordinance violations and are enforceable by any local law enforcement official. PHMDC has created a new complaint team that will evaluate and address complaints.

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 or 1-844-333-5253.

Dane County Modifies Phase 2 Reopening

Due to a recent increase in positive COVID-19 cases, Public Health Madison and Dane County (PHMDC) released Emergency Order #6 on June 25. The new order was effective at 10:00 p.m. on the same day.

The new order modifies three sections of Emergency Order #5:

  • Gatherings inside private property and residences are limited to 10 individuals (a reduction from 50 individuals).
    • There is no change to the limitations on mass gatherings inside commercial facilities (up to 50 individuals) or outside (up to 100 individuals).
  • Restaurants and bars must space tables and chairs to ensure customers who are not living together are at least six feet apart. This applies to outdoor and indoor dining spaces.
    • The previous order only required tables be spaced at least six feet apart.
  • Restaurants and bars must prohibit standing service. Customers must stay seated at all times unless they are “in transit.” PHMDC has explained this means “moving to the restroom is fine but patrons must be seated during their visit.”

PHMDC has updated its FAQ on Phase 2 under the Forward Dane reopening plan to include these changes.

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 or 1-844-333-5253.

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