Although the succession in presidential administrations from Trump to Biden will almost certainly bring many changes to employment and labor law rules and regulations in 2021, the more immediate concern for Wisconsin employers is to review and, if necessary, revise their COVID-19 leave and vaccine polices. In either circumstance, employers should communicate their policies to employees as soon as possible.

1.)  COVID-19 Leave

The federal Families First Coronavirus Response Act (“FFCRA”) was originally enacted into law in March 2020 for qualifying leave that was taken between April 1, 2020 and December 31, 2020. But its requirements of mandatory leave expired on December 31, 2020. This means that mandatory paid leave at companies that employee less than 500 employees is no longer required.

However, the recent federal stimulus legislation signed by President Trump on December 27, 2020 allows that covered employers who voluntarily offer such leave may use payroll tax credits to cover the cost of leave benefits paid to employees through the end of March 2021. The legislation does not modify the qualifying reasons for which employees may take COVID-related leave, the caps on the amount of pay eligible employees are entitled to receive, or the FFCRA’s documentation requirements. However, an employer will not receive a tax credit for paid leave if an employee exceeds the maximum amount of FFCRA leave, whether that leave was taken in 2020 or 2021.

Upshot for Employers: An employer should consider whether it is in its best interest, and the best interests of their employees and their employees’ families, to continue to offer paid FFCRA leave. In either scenario, the company should draft and communicate its policy — whether it will continue paid FFCRA leave or not — for the benefit of all employees. Presumably an employer may modify the leave benefit to something less than the amount originally required under the FFCRA and still receive the tax credit, although the U.S. Department of Labor has not yet issued an opinion on such hybrid approach.

2.)  COVID-19 Vaccine

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance that gives private employers the go-ahead to implement COVID-19 vaccine policies that would require employees to be vaccinated as a condition to continue employment, or at the least as a condition to returning to the physical workplace.

The distinguishing feature is that the vaccine is not a “medical examination.” If it were, then the Americans with Disabilities Act (ADA) would be implicated. The ADA limits the ability of an employer to require a medical examination to situations where the exam is “job-related and consistent with business necessity.”

But even though a required vaccine does not itself run afoul of the ADA, pre-screening vaccination questions may implicate the ADA’s limitation on disability-related inquiries, because the inquiries may elicit information about a disability.

Upshot for Employers: Employers should consider whether they will require their employees to receive a COVID-19 vaccination when it is available. Health care facilities will likely invoke such a requirement. But non-health care facilities should consider many factors before invoking a mandatory vaccine requirement, such as the ability to socially distance in the workplace, the availability and effectiveness of remote work options, and the general duty to keep a safe workplace. In either scenario, the astute employer will inform employees of its policy in writing. An employer that offers the vaccine to its employees should consider the benefit of using a third-party vendor. That vendor should be well-prepared with respect to when it may ask questions before administering the vaccine the ensure that there is no medical reason that would present the person from receiving it.

Anderson O’Brien’s attorneys are well-versed to serve Wisconsin clients with respect to risk management and practical business steps involving COVID-19 leave and vaccination practices that comply with state and federal laws. They may be reached at andlaw.com or by calling 715-344-0890.

 

With in-person national, state and local partisan voting set for Tuesday, November 3, 2020, it is timely for employees and employers to review Wisconsin law with respect to voting rights.

An employer must allow an employee to be absent from work to vote in a political election for up to three consecutive hours while the polls are open, if the employee requests such time off before the day of the election. However, the employer may decide the time of the workday for such an absence. The employee is not entitled to be paid for the time away from work but depending on workplace rules (check the employee handbook), the employee may substitute paid time off for time that is otherwise unpaid.

For this election, registered Wisconsin voters may request an absentee ballot. Due to the growing popularity of voting by absentee ballot, it may be that employers experience fewer requests by employees for leave to vote on the day of the election. An employer may request an employee who requests to leave to vote on election day to certify that he or she has not voted by absentee ballot.

An employer is prohibited from penalizing an employee who is absent from work to vote after making previous arrangements with the employer to vote.

May an employee take an unpaid leave of absence from work to work as an election official?

Wisconsin law requires every employer to grant an unpaid leave of absence to each employee who is appointed to serve as an election official, as long as the employee who is serving as an election official provides his or her employer with at least seven days’ notice. The leave is for the entire 24-hour period of each election day in which the employee serves in his or her official capacity as an election official. Upon the request of any employer, a municipal clerk must verify such appointment. In this instance, an employee who wishes to serve as an election official must notify the employer of such appointment no later than October 26, 2020.

Employers may not use threats of discharge, threats of compensation reduction, promise compensation increases to influence exercise of an employee’s voting rights, discriminate against employees who refuse to participate in employer communications about political matters, or display or otherwise circulate communications containing threats to reduce compensation or conduct layoffs depending upon election results.

Wisconsin employers may not discriminate against employees because of their use of lawful products. Use of lawful products may be broadly defined in certain circumstances to include such things as blogging software, Twitter, political signage and other products used to speak. Therefore, an employer needs to consider all Wisconsin laws before it acts with respect to an employee who is exercising his or her voting or speech rights.

Under Wisconsin’s constitution, there is a right to free speech: “Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right and no law shall be passed to restrain or abridge the liberty of speech or of the press. . .” However, this right of free speech applies to state/governmental action, not action by a private employer. Jacobs v. Major, 139 Wis. 2d 492 (1987).

For any questions that an employer or an employee may have with respect to workplace rules that affect employees’ right to vote, contact your employment lawyer or human resources professional.

 

The Wisconsin Supreme Court, by a 4-3 vote, invalidated Wisconsin’s Safer-at-Home Order, also known as Order #28.  It issued that decision on May 13, 2020. Here are five key takeaways to consider in the wake of that decision:

1.)  As of this writing, Order #28 is no longer enforceable. People in Wisconsin are not required by that Order to stay at home.  Non-essential businesses are not required to remain closed.  There is one exception to the Supreme Court’s decision, however:  The portion of Order #28 that requires closure of public and private K-12 schools remains in effect for the remainder of the 2019-2020 school year.

2.)  The Supreme Court’s decision does not affect any other federal or state legislation concerning the COVID-19 pandemic, such as the so-called Families First legislation, the CARES Act, Wisconsin Act 185, or any similar legislation. Those laws remain in effect.

3.)  Wisconsin businesses must continue to be aware of the Wisconsin Safe Place law. That law requires that an employer, or owner of a place that is open to the public must provide a safe place of employment for both employees and visitors and to undertake that which is reasonably necessary to life, health, safety and general welfare of employees and visitors.  OSHA’s general duty clause also remains in effect.  It holds that each employer shall furnish to each employee a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.

4.)  People and businesses may continue to use the concepts found within Order #28 to guide their conduct. However, such guidance is voluntary; it is not mandatory.  Businesses should continue to review the CDC or the Wisconsin DHS website for suggested practices in addressing health concerns relating to COVID-19.

5.)  It is possible that local health authorities may issue rules or orders that affect people or businesses following the invalidation of Order #28. In addition, Governor Tony Evers and the Wisconsin Legislature may collaborate on new rules or legislation to replace Order #28.

Stay apprised of new legal developments in the weeks and months ahead.  Seek legal counsel as necessary.  In the meantime, the attorneys at Anderson O’Brien will continue to monitor the legal developments with you.

 

The Equal Employment Opportunity Commission (EEOC) has updated its guidance, as of April 17, 2020, to assist employers in responding to the COVID-19 pandemic in the workplace.  See www.EEOC.gov

Ordinarily, an employer is prohibited by the Americans with Disabilities Act (ADA) from asking an employee who calls in sick about the specific symptoms he is experiencing. During the COVID-19 pandemic, however, the EEOC states that employers may ask employees who call in sick if they are experiencing symptoms of the novel coronavirus. Employers must maintain all information about an employee’s illness as a confidential medical record.

In addition, the EEOC expressly recommends that employers refer to the Centers for Disease Control and Prevention (CDC) and state or local public health authorities about steps employers should take regarding COVID-19. Employers are advised to stay abreast of the most current information on maintaining workplace safety.

EEOC Addresses Mental Illness Made Worse by the Pandemic

The EEOC’s guidance includes consideration of an employee’s pre-existing mental illness or disorder that has been made worse by the COVID-19 pandemic. The issue is whether an employee with a pre-existing condition may now be entitled to a reasonable accommodation under the ADA. In response, the EEOC advises that although many people feel significant stress due to the COVID-19 pandemic, employees with pre-existing mental health conditions, such as anxiety disorder, obsessive compulsive disorder, or post-traumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic.

As a result, an employer should address the mental illness as it would any other accommodation request under the ADA. Specifically, the employer may ask questions to determine whether the condition is indeed a disability and discusses with the employee how the requested accommodation would assist him and enable him to keep working. The employer and the employee may also explore alternative accommodations that may effectively meet his needs. Medical documentation may be requested by the employer, if needed.

The bottom line for employers is to remember that although an employer may gather additional health-based information from its employees during a pandemic, the basic principles of non-discrimination and reasonable accommodation in the workplace continue to be mandatory principles under the law. For further information concerning specific situations, contact your Anderson O’Brien attorney.

 

COVID-19 also known as the corona virus has inundated the normalcy of everyday existence like a worldwide flash flood. Currently, the flood waters are predicted to rise before they recede. More will be attempted by government to keep the flood at bay, as shown by Governor Evers’ “Safer at Home” Order signed on March 24, 2020.

The COVID-19 pandemic will eventually subside. But for now, it is threatening to overwhelm a significant portion of our national, state and local economies. Social distancing to a six-foot minimum is relatively easy compared to the challenges facing employers in responding quickly and effectively to keep the workplace safe for all employees in this pandemic.

The Center for Disease Control (CDC) is issuing guidance to employers with respect to how best to keep the workplace safe at this time of the pandemic. See, for example, www.osha.gov. That guidance tracks well with the general duty clause under the Occupational Safety and Health Act (OSH Act.) With the CDC guidance and OSH Act in mind, questions arise such as how do employment laws like the Americans with Disabilities Act (ADA) meant to protect an individual worker’s rights from discrimination and retaliation, affect the decisions that the responsible employer must make in balancing safety versus individual employee interests? May the responsible employer, in the urgency of a pandemic, take steps that it ordinarily would not take such as taking the temperature of an employee who does not show signs of COVID-19 or requiring an employee to self-quarantine if he or she has recently traveled to an area known to be experiencing so-called “community spread” to protect the workplace?

In addressing the many issues that must be considered by employers trying to manage their business effectively, it is important to note that the ADA has not been repealed. Employers must remain mindful of the rights of employees to be free from disability discrimination (or the perception of a disability), the requirement for reasonable accommodations and the limitations on medical examinations and inquiries, under the relevant rules and regulations of the ADA. In ordinary times, when there is not a direct threat to the workplace posed by a pandemic, this means to limit the inquiries that an employer makes about the health status of any individual employee.

However, in instances where a health pandemic and a national emergency have been declared, an employer that acts reasonably in making health-related inquiries in the interest of overall workplace safety will almost certainly be afforded more latitude under applicable employment laws, even when aggressively engaging in health-related inquiries of its workforce or requires an employee to leave the workplace due to suspected COVID-19 exposure than it would under ordinary circumstances. In other words, the balance between protecting individual employee rights and overall workplace safety has shifted in favor of workplace safety. The name of the game for the prudent, lawful employer is to achieve workplace safety in a manner that is reasonable and consistent with federal and state health experts. Of course, what is reasonable may vary significantly from business to business. For example, a business that does not require travel may not have the same need to ask its employees about disease-related symptoms as a business that ordinarily has employees that travel throughout the country.

The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the ADA, has recently confirmed that employers should follow the guidance of the CDC. The EEOC issued new guidance on March 19, 2020 that specifically states that while the ADA continues to apply in times of a pandemic, the law should not “prevent employers from following the guidelines and suggestions made by the Center for Disease Control” or the guidance of state or local authorities. See, for example, www.eeoc.gov. This means that employers may, in some circumstances, take the temperature of their employers. But caution is warranted for many reasons, including the fact that a person with COVID-19 disease may not have a fever, according to the CDC.

The Wisconsin government entity that addresses statewide health issues is the Department of Health Services (DHS). It has a robust website that offers helpful guidance to employers and others about COVID-19. It is found at www.dhs.gov.

The EEOC’s updated pandemic guidance is speaking clearly to employers. Prudent employers are advised as follows:

1. Keep your workplaces safe and stay within the bounds of applicable law, follow the guidance of the CDC and state and local health officials.
2. Remember to keep specific health information on individual employees separate and confidential.
3. Make inquiries about the health of your workers, but do so reasonably and without hysteria by following the guidance of the health experts.
4. Educate your employees about the information available through the CDC and the Wisconsin DHS.
5. Remind employees often of effective measures to reduce the spread of COVID-19.

Finally, the responsible employer with fewer than 500 employees is advised to review and follow, if applicable, the new mandated sick leave and emergency FMLA benefits to be provided to most employees under the recently passed Families First Corona virus Response Act. The prudent employer will want to compare those mandated benefits with the benefits that the employer may already provide to its employees as part of its paid time off or sick leave benefits. The Families First legislation will become effective no later than April 2, 2020.

For the foreseeable future, the employment law landscape will be deluged by the COVID-19 pandemic. The prudent employer will stay alert to guidance put forth by the CDC, the Wisconsin DHS, and the U.S. Department of Labor. Contact your Anderson O’Brien lawyer with any questions that you have concerning keeping your business afloat with a minimum of legal risk.