workplace

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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.

COVID-19 Resources - 08/05/2020

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 info@le-hrlaw.com or 1-844-333-5253.

COVID-19 Resources - 07/15/2020

Evers Administration Releases Specific Guidance to Prepare for Reopening

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

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace. Please keep watching for blogs and emails from your Lake Effect team for important legal updates and HR best practices. The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

COVID-19 Resources - 05/08/2020

EEOC Updates ADA Accommodations and EEO Reporting

On May 7, 2020, the EEOC updated an existing technical assistance publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws.” New questions and answers on “Return to Work” address an employer’s obligations to accommodate employees with underlying medical conditions as they begin to return to the workplace during the ongoing COVID-19 pandemic. The EEOC also provided updated guidance on EEO reporting.

The new guidance confirms that if an employee has a medical condition that may create a higher risk for severe illness from COVID-19 (as identified by the CDC) and is in need of a reasonable accommodation, the employee must inform their employer either verbally or in writing about the medical condition and the potential need for an accommodation. The employer may then ask questions or seek medical documentation to determine whether the employee has a disability that can be reasonably accommodated without undue hardship. Notably, if an employee does not request an accommodation, the employer is not required to take action. If the employer knows and is concerned that an employee has a medical condition that increases the risk of severe illness from COVID-19 (as identified by the CDC), the employer may not exclude that employee from the workplace or take any other adverse action solely on that basis unless (1) the employee’s disability poses a “direct threat” to their health that (2) cannot be eliminated or reduced by reasonable accommodation.

The ADA “direct threat” requirement is a high, fact-specific standard. The direct threat assessment may not be based solely on a condition being on the CDC’s list; rather, an employer must make an individualized assessment based upon a reasonable medical judgment about the employee’s specific disability. In most cases, the employer will have to consider such factors as: the severity of the pandemic in the geographic area of the worksite; employee’s specific health condition; the employee’s job duties; likelihood of exposure to the virus at the worksite; and measures being taken by the employer to protect all workers.

Even if an employer determines that an employee’s disability poses a direct threat to the employee’s own health, the employer still cannot exclude or take adverse action against the employee unless there is no way to provide a reasonable accommodation absent undue hardship to the employer. Potential reasonable accommodations may include: providing enhanced protective gear or equipment; erecting protective barriers in the workplace; eliminating marginal functions; and temporarily modifying an employee’s work location or schedule.

This means that an employer may only bar such an employee from the workplace if, after going through all necessary steps and considering all potential accommodations, the facts demonstrate that the employee poses a significant risk of substantial harm to herself that cannot be eliminated by reasonable accommodation.

In a separate action today, the EEOC announced that it will delay collection of 2019 and 2020 EEO-1 (Employer Information Report), 2020 EEO-3 (Local Report) and 2020 EEO-5 (Elementary-Secondary Staff Information Report) due to the COVID-19 public health emergency. The EEOC expects to begin collecting 2019 and 2020 EEO-1 reports in March 2021, and it expects to begin collecting 2020 EEO-3 and EEO-5 reports in January 2021. The EEOC will notify filers of the precise dates the surveys will open as soon as those dates are available.

The legal and HR team at Lake Effect is closely monitoring the continuing impact of COVID-19 on the workplace and will continue to provide timely updates. Please visit our COVID-19 resource page for all of our pandemic-related legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Human Resources / Legal - 05/07/2020

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

COVID-19 Resources - 05/01/2020

Safer at Home Extended – Preparing for Your “New Normal”

In the wake of Governor Evers’ extension of Wisconsin’s Safer at Home Order until May 26th, we are all eager to return to our normal ways, but what will our normal be after the quarantines lapse? What can we learn from this experience? What do we want to carry forward as part of our “new normal,” both personally and in the workplace?

Many people have discovered that they enjoy the flexible work schedule and wellness habits that they can incorporate while working at home. People have enjoyed sleeping in (minus the COVID-19 related dreams), eating healthier, taking walks in the afternoon, spending more quality time with the kids, working during their most productive time of their day, and implementing other work/life balance habits that were difficult to attain in the past. Some organizations are facing very dark days, reducing staff and pay, and anticipating future challenges. In the face of it all, however, organization leaders have expressed pride in the innovation, collaboration, resiliency, and flexibility of their teams over the past few weeks.

What can we learn from this? What can we adopt and incorporate to improve work performance, relationships and overall job satisfaction? Ask yourself and your team members what went well during this time and how you can continue to support new-found innovation, creativity, engagement, collaboration, and resiliency. Use this challenging experience as an opportunity to capture the best parts of your organization’s new normal and strategize now to prevent your organization from falling back into old, bad habits.

In addition, take some time to review your emergency and business continuity plans, handbook policies and procedures, and benefit plans to ensure that your organization is better prepared to manage future catastrophic events. You may want to consider some of the following:

  • Implement an employee assistance plan, including free and confidential assessments, short-term counseling, referrals, and follow-up services to employees who have personal and/or work-related problems including work-life stressors, family issues, financial concerns, relationship problems, addiction concerns, etc.
  • Implement a financial literacy and advisory program for your team to improve financial literacy, planning and security.
  • Establish an internal Emergency Action Plan and communicate it to staff on a regular basis. Consider testing the plan with impromptu drills.
  • Integrate flexible work schedules and virtual work opportunities that can minimize commute times, reduce transmission of infection, encourage healthy habits, and enable team members to spend more time with family. Expand leave policies to include care for close friends and non-traditional family members.
  • Expand bereavement leave policies to include loved ones beyond immediate family members. Consider providing more than a few days to grieve or plan a funeral.
  • Modify the way you coach and manage employees’ performance to move away from micromanaging to a results-based methodology.
  • Move to a (more) paperless work environment to support virtual team members and improve organizational preparedness during unexpected disruptions or workplace closings.
  • Review and enhance IT security to protect the information of your team members, organization, and clients/customers.

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.

COVID-19 Resources / Human Resources - 04/17/2020

Updated CDC and OSHA Guidance Regarding Employees with COVID-19 at Worksite

Two government agencies recently released updated “interim guidance” for employers responding to COVID-19 in the workplace. This is important information for employers in essential and critical businesses who still have active workplaces. On April 8, 2020, the Centers for Disease Control provided new guidance on treatment of workers with suspected or confirmed exposure to COVID-19. On April 10, 2020, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) released new guidance recording cases of COVID-19.

New CDC Guidance:

  • The CDC advises that “critical infrastructure workers” may continue working following exposure to COVID-19, provided they are asymptomatic and additional precautions are taken.
  • Critical infrastructure workers include workers in food and agriculture, critical manufacturing, information technology, transportation, energy, government facilities, janitorial staff, law enforcement, 911 center employees, hazardous materials responders, and Fusion center employees.
  • Potential exposures are defined as being a household contact or being within 6 feet of an individual with confirmed or suspected COVID-19.  The contact must have been within 48 hours before individual became symptomatic.

Additional precautions that an employer should take include:

  • Pre-screening employees by taking temperature and assessing symptoms before shifts begin.  Ideally, this should be done before a worker enters the worksite.
  • Asking an employee to self-monitor both during and between shifts, following the employer’s occupational health program.
  • Requiring exposed employees to wear a mask at work for 14 days after exposure. Employers can provide masks or employees can wear their own.
  • Requiring all employees to abide by the 6-foot social distancing rule during shifts, as permissible. Employees should not share equipment that must be placed near their mouths or noses.
  • Cleaning and disinfecting all workspaces on a frequent and regular basis, and increasing air exchanges in rooms.
  • If an employee becomes symptomatic at work, they should be sent home immediately.  Employers should track all other employees who had contact with the ill employee in the 48 hours before becoming symptomatic.  Any employee who was within 6 feet of the ill employee should be considered to be exposed to COVID-19. Keep in mind that employee privacy protections still apply.

New OSHA Guidance:

  • If an employer can identify that an employee contracted COVID-19 through worksite exposure, the employer must record that injury in OSHA logs as a “work-related illness.”  COVID-19 is considered a recordable illness and employers must record cases of COVID-19 if the following are true:
    • The employee has a confirmed case of COVID-19;
    • The illness is considered to be work-related; and
    • 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 is met.
    • The illness involves one or more of the recording criteria, including medical treatment beyond first aid or days away from work.
  • However, because it may be difficult for employers to determine if an employee with COVID-19 contracted COVID-19 at work, OSHA will not enforce its record-keeping requirements on employers to make “work-relatedness” determinations, except when there is objective evidence that the exposure was work-related and that evidence is reasonably available to the employer.
    • Note: this exception applies only to employers outside of the healthcare industry, first responder organizations and correctional facilities.

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.

COVID-19 Resources - 04/13/2020

Dealing with Flu & Illness in the Workplace

This winter, everyone seems to know someone at home or at the office who has been taken down by some variation of the flu or a virus. What can employers do to reduce the spread of illness and manage employee time off, leaves of absence, and requests to work from home? We have some suggestions!

Prevent the Spread of Illness in the Workplace

  • Review your relevant policies to ensure that they encourage sick workers to stay at home without fear of any reprisals. Remember that you provide paid time off so that employees can care for themselves, take breaks from work to refresh, and much more.
  • Encourage employees to stay home when sick and until they are no longer contagious.
  • Throughout the day, clean and disinfect shared surfaces and objects that are touched frequently (e.g. doorknobs, desks, phones).
  • Create a work environment that promotes preventive actions to reduce the spread of illness. For example, provide tissues, no-touch trash cans, hand soap, and/or hand sanitizer.
  • Remind employees and loved ones to
    • engage in good self-care, including getting rest and the seasonal flu shot.
    • cough or sneeze into a tissue, sleeve, or arm – not their hands.
    • avoid touching eyes, nose, and mouth with unwashed hands.
    • wash hands often with soap and water for at least 20 seconds, or use an alcohol-based hand sanitizer.
    • avoid close contact with anyone with cold or flu-like symptoms.

Minimize the Impact on the Business

  • If an employee has reported in sick and asked to be able to work from home, if the employee’s health and job duties do permit working from home, you can allow employees to work from home and make use of affordable telecommuting and teleconferencing technology.
  • If the employee’s health and duties do not permit, then employees should not be expected to or required to work from home. Work with other employees to reassign the duties of ill co-workers to ensure smooth workflow during absences and to lessen the load upon return.

The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to assist and advise if you have questions related to flexible work environments, employee perks, and leaves of absence. Contact us at info@LE-hrlaw.com or 1-844-333-5253.

Human Resources - 02/12/2020

Upcoming Changes to Illinois Employment Laws

Over the summer, Illinois enacted several amendments to the state’s employment laws that will take effect January 1, 2020.

Sexual Harassment Training

All employers with Illinois employees must provide sexual harassment prevention training to their employees at least annually. The Illinois Department of Human Rights has advised that it will create a model training program for employers, but at the time of this article, it is not yet available. Alternatively, employers can use their own sexual harassment training program as long as it meets the state’s legal requirements. We can also create a training program for you that complies with Illinois’ legal requirements and is tailored to fit your industry, workplace culture, and mission.

Legalization of Recreational Marijuana

Organizations with employees in Illinois will confront a new legal landscape under the Cannabis Regulation and Tax Act, which declares marijuana a “lawful product” under Illinois state law. Under the new law, the use, possession, and cultivation of marijuana for medical or recreational purposes will be legal for adults age 21 and older. There are now 11 states that allow recreational use of marijuana and 33 states that allow marijuana use for medical purposes.

The expansion of marijuana legalization in Illinois dramatically affects employer drug-free workplace and testing policies. Under the new law, employers can still prohibit the use, storage, buying, and selling of marijuana at work; they can likewise prohibit employees from being impaired or under the influence of marijuana at work. If an employer has a good faith belief that an employee is impaired at work or while on call, the employee can be disciplined only if that belief is based on specific, objective symptoms. An employee must also be given an opportunity to contest the basis of the determination of impairment. Employers cannot take an adverse action against an employee for merely testing positive for marijuana while at work. Employers should be wary of pre-employment drug testing, employment testing without reasonable suspicion and zero tolerance policies. It is not yet clear if Illinois employers can terminate employees who refuse to submit to a drug test that is based on a good faith belief of impairment.

Please contact your partners at Lake Effect Human Resources & Law if you would like to discuss a customized sexual harassment training program for your organization, or if you would like us to review your workplace and drug testing policies to ensure they comply with Illinois’ new laws.

Human Resources / Legal - 10/22/2019

COVID-19 Resources

Lake Effect HR & Law, LLC
(844) 333-5253 (LAKE)
info@le-hrlaw.com

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