The Workplace in the Middle of a Pandemic: What is a Wisconsin Employer to do?

The Workplace in the Middle of a Pandemic: What is a Wisconsin Employer to do?

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considered by employers trying to manage their business effectively, it is important to note that the ADA has not been repealed.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.

 

Beware of Dog Owner Liability and Coverage

Beware of Dog Owner Liability and Coverage

“As wonderful as dogs can be, they are famous for missing the point.” – Jean Ferris. Sometimes when dogs miss the point; things can go horribly wrong. Statistically, there are four to five million Americans bitten by dogs every year.  There is precedent for animals standing trial for criminal charges, with the earliest record of an animal trial is the execution of a pig in 1266 at Fontenay-aux-Roses.  However, in recent history, putting the animal on trial for its vicious acts has gone out of vogue. Without the possibility of a kangaroo court – pun intended – it is the owners who face the consequences when a good dog “breaks bad.”  Specifically, Wisconsin has two categories of laws regarding the liability for harm caused by dogs.

The first applies when the dog has no history of causing harm.  In this case, the owner will only be liable for the actual amount of damage caused by the dog.  Included in the amount an owner may owe to the victim are hospital bills, lost wages and money to compensate the victim for pain and suffering.  It is worth noting that under the law, “owner” includes anyone who keeps or harbors a dog. This means that if you are caring for a dog long-term at your residence, you may be liable for damage caused by the dog if you are found to be “harboring or keeping” the dog.

The second category of liability creates enhanced penalties for an owner of a dog who has notice of the dog’s past bad behavior.  To quote the statute, “the owner of a dog is liable for twice the full amount of damages caused by the dog biting a person with sufficient force to break the skin and cause permanent physical scarring or disfigurement if the owner was notified or knew that the dog had previously, without provocation, bitten a person with sufficient force to break the skin and cause permanent physical scarring or disfigurement.”  Luckily, normal puppy bites and teething behavior do not rise to this level. Gasper v. Parbs, 2001 WI App 259, 249 Wis. 2d 106, 637 N.W.2d 399.

In light of the threat that a dog owner may be on the hook for the damage caused by a dog that attacks, what can be done? Aside from obedience training, the most important thing to do is to check your homeowner’s insurance policy.  Many policies have language excluding certain dog breeds from liability coverage. A list of commonly excluded breeds may include any of following: Pit Bull, American Pit Bull, Rottweiler, Chow Chow, Doberman Pinscher, American Staffordshire Terrier, American Bulldog, Colorado Bulldog, Northwood’s Bulldog, English Bull Terrier, Wolf Hybrids, or a mixed breed with any of the aforementioned breeds.  Although this list seems somewhat arbitrary, it is worth checking your policy to determine if you will be covered in the event that your dog bites someone.

 

Keeping Confidentiality, Whose Email Server Are You Using When Emailing Your Lawyer?

Keeping Confidentiality, Whose Email Server Are You Using When Emailing Your Lawyer?

One of the most significant benefits of seeking advice from your lawyer are the ethical rules that generally require that the communications with your lawyer are confidential.  This means that, except in some limited circumstances, information that a business or individual client conveys to the business’s or the individual’s attorney remains confidential.  One such exception to this general rule is if an employee uses the employer’s email domain to communicate with employee’s lawyer.  Confidentiality may be lost in that instance.

Consider this example:  If Emily, an employee, wants to communicate with her lawyer about her employer, ACME, Inc., regarding her concerns about sexual harassment in the workplace, she ordinarily may do so with every confidence that the communication will not lose its confidential nature.  However, one way that the private, confidential nature of Emily’s communication to her lawyer may be lost is if she and/or her lawyer uses the ACME email domain/server to communicate.  This is particularly true in instances where the employer has made it clear in its handbook that employees have no expectation of privacy in communications made over the company’s email server.

If an employee uses an employer’s email domain to communicate with his or her lawyer, there is a significant risk that the communications may lose the protection of confidentiality.  This was the case in a recent Florida case, where the court said that the information sent between client and attorney over the employer’s email domain and server was not protected by rules of confidentiality and the attorney client privilege.

As such, an employee is well-advised to use an email domain other than one that is provided by the employer when communicating with their lawyer.  The employer is well-advised to specify as part of its policies in its employee handbook that employees should not expect privacy or confidentiality for matters that are shared over the employer’s email domain.  In other words, employers should consider drafting a well-written policy that there is no expectation of privacy if the employee uses the employer’s server or email domain for personal purposes.  Finally, although it may be inconvenient, a person or business that communicates with an attorney should take care to use a method of communication that maintains confidentiality, one of the greatest benefits of seeking legal advice from an attorney.

 

Take it Easy on the Beers While Riding a Lawn Mower

Take it Easy on the Beers While Riding a Lawn Mower

If you are like me, after mowing the lawn and job well cut, you may enjoy a cold refreshing adult beverage.  With that frosty refreshment in mind, I stumbled upon a recent, and unique, Wisconsin Court of Appeals decision that held that a riding lawn mower is a “motor vehicle” for purposes of Wisconsin’s Operating While Intoxicated (OWI) statute.  Since we are in the doldrums of winter, I figured the case was worth a share as a humorous public service announcement during these dark and cold days.

In the recent State v. Shoeder case, following his departure from a local tavern, the defendant was arrested for an OWI while he was operating a riding lawn mower on the shoulder of a public roadway.  The defendant moved to dismiss the charge, arguing that a riding lawn mower is not a “motor vehicle” within the meaning of the OWI statute, and instead it was more akin to Wisconsin’s definition of an “all-terrain vehicle” (OWI while on an ATV had different penalties).  The trial court and Court of Appeals disagreed with the defendant’s position.

In reaching its decision, the Court of Appeals looked at the definitions of “motor vehicle” and “vehicle.”  Under Wisconsin law, a “motor vehicle” is any vehicle that “is self-propelled, except a vehicle operated exclusively on rail.”  Crucial to the decision was the broadly defined “vehicle,” which includes “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except railroad trains.”  Wis. Stat. § 340.01(74).

Applying these definitions to the defendant’s chosen conveyance, the court determined that the riding lawn mower was a “motor vehicle” and “vehicle;” it is self-propelled and a device on which a person may be transported on a highway.  The court further rejected the defendant’s argument that the riding lawn mower should be considered an “all-terrain vehicle,” as it did not meet the ATV definition requirement of being “equipped with a seat designed to be straddled by the operator.”  Wis. Stat. § 340.01(2g).

It is important to highlight a very important fact that led to this defendant’s predicament:  He was using the riding lawn mower on the shoulder of a public roadway.  As with any OWI in Wisconsin, the operation must have taken place on a public roadway or highway; a homeowner’s lawn is not going to be considered a public roadway for purposes of the OWI statute should someone make the mistake to over imbibe.   That all said, the safest route is to limit your beer consumption to when you are done cutting the lawn and are sitting back enjoying the fruits of your labor.

 

What Happens If I Pass Without a Will?

What Happens If I Pass Without a Will?

“What will happen to my assets when I pass away?” This is the question that brings many clients into their attorney’s office for initial estate planning discussions. Typically, their estate planning attorney will ask questions to learn about their assets, family and wishes. From that information, the attorney will work to craft a plan that best achieves those goals. Many clients make that initial appointment intending only to create a Will, but soon learn that a comprehensive estate plan is about much more than the contents of a Last Will and Testament. In most cases, beneficiary designations, marital property agreements or trusts become important components for the plan. The purpose of this article is to examine what happens if that meeting never occurs and the individual passes without any estate planning done.

As a preliminary matter, it is important to note that most people have at least done some estate planning even if they have never written a Will or met with an attorney. Typically, this comes in the form of a beneficiary designation on financial accounts, life insurance or retirement assets like 401(k)s. Alternatively, some may own property in a form of title which creates rights of survivorship. While these choices may not have been a part of a comprehensive plan, they do represent decisions which have deviated from the “default.” This sort of uncoordinated and piece-meal planning can sometimes cause more harm than good, especially when beneficiary designations are not updated for many years or are not made consistent with other planning documents. For example, a decades old beneficiary designation on an account will control over a newly executed Will unless the designation is updated. For the purpose of this article’s examination of what happens without any estate planning, we assume these designations were left blank and assets are titled such that there are no survivorship rights.

For residents of the State of Wisconsin, the “default” is found in Wisconsin Statute Section 852.01. In a sense, this statute is the state legislature writing a Will for anyone who has not written their own. The distribution pattern written into this section attempts to grasp what most people would have selected in their Will had they written one, or in a beneficiary designation had they made one. As such, the more “traditional” your family structure is, the more likely the default will align with your actual desires as it is based on the “issue.” The term “issue” in this context of estate planning, refers to lineal descendants, typically children and grandchildren and will continue to refer to such throughout this article.

In the absence of any planning to the contrary, if you did not have any children with anyone other than your current spouse, everything will go to the spouse, if they survive you. However, if you have children from another relationship, then your surviving spouse or domestic partner will inherit one-half of your property other than your interest in marital property or property held as tenants in common with the survivor.

If there are issue, then they shall receive in equal shares any shares not inherited by the surviving spouse. If there is not a surviving spouse, then they shall receive the entire amount “per stirpes,” which is Latin for “by branch.” This means that your children each would receive an equal share, but if one of your children predeceased you, their share would instead pass to any children they had which remained alive, split by whatever number of grandchildren descended from that deceased child. If the deceased child left no issue of their own, that “branch” of the family tree has been extinguished, and the other branches assume their share.
If there is no surviving spouse or issue, then the assets pass to the deceased’s parents. If there are no surviving parents, then the shares pass equally to any siblings of the deceased, per stirpes. Here, per stirpes would again mean we would look down the family line of any predeceased siblings for a beneficiary. If no surviving beneficiaries are found at this point, then the assets pass to the grandparents per stirpes.

Any share that would go to a beneficiary under the age of 18 will be held in a custodial account for their benefit until they reach of the age of 18. This is because minor children are considered incapacitated under the law and cannot manage large sums of money on their own. When the child comes of age, whatever funds are left are turned over to their control.

Finally, if no heirs can be found as close to the deceased as any living descendant of the deceased grandparents, then the property “escheats,” or “goes to,” Wisconsin Statute § 852.01(3) to be added to the state’s school fund. Clients sometimes ask if their property will be taken by the state if they do not have a Will. This is usually what they are referring to and, as you can see, this will only happen if no family can be located out as far as the descendants of the grandparents.

In addition to the rules described above, there are a great number of exceptions and rules for special circumstances which are too numerous to discuss here. For example, someone who murders their spouse is effectively disinherited, and a parent who abandons their child can lose the rights to inherit from that child if they die. There are also rules for how domestic partners inherit from one another.

Those with children from multiple partners, who are in second or third marriages, who have the intent to treat their children differently, or want to provide for someone who is not legally their child, such as a stepchild, often find these default rules vary greatly from how they would want their assets divided. Unfortunately, the court will not hear arguments that the resulting distribution does not match what the deceased would have wanted. The only way to opt-out of the pattern established by the statute is to take affirmative steps during your lifetime.

Assets pass to the appropriate beneficiaries through probate, which is the court supervised process for distributing the assets of one’s estate upon their death and paying their final expenses. A common misconception is that a Will avoids the need for probate, but a Will merely provides alternate instructions for distribution of one’s assets in the probate process. If you have assets in multiple states, it may be necessary to have multiple probates. This is because Wisconsin courts have limited authority to dictate how property in other states transfers. Proper planning can avoid this expensive problem.

A Will also nominates a personal representative to oversee the probate process. In the absence of a nomination, the court will appoint someone to manage the probate process. Often, this is a surviving spouse or a relative who steps up to the responsibility and volunteers to take on the task. Unfortunately, the power the personal representative wields can sometimes attract those who are seeking to abuse the position for personal gain or to go on a power trip. In the absence of a clear direction by you, the court may not be able to tell the difference between these types of people.

Even if your intent matches the default distribution pattern, estate planning can still offer a number of benefits over dying intestate (without a Will). For example, certain types of estate planning can avoid the probate process entirely, saving time and money upon your death. Trust funds are commonly used to prevent beneficiaries under a certain age from gaining direct control of large sums of money. A trustee manages the funds and helps pay for expenses for the beneficiary until they reach the set age and get full rights to the property. Many prefer this option over the possibility that a grandchild would receive a sizeable inheritance upon turning 18, as statistically that money will probably be wasted and gone within a few years. Sometimes, when a beneficiary is known to be irresponsible with money and the problem does not seem likely to improve with age, trusts can hold onto the money for their entire lives.

Outside of what happens to your assets, dying without estate planning could affect who is given guardianship of your minor children. Typically, the Will is where a parent would nominate who would be charged with looking after their children were the parents to die while the children were still minors. In the absence of a nomination, the court system will decide who will take care of them. This likely will be a family member, but the court will have limited information about your child and your family dynamics. Nominating a guardian is often one of the most important reasons clients with minor children schedule an estate planning appointment.

This article only discusses what happens if you pass without an estate plan, but most estate plans will include power of attorney documents, which appoint trusted individuals to make decisions for you in the event you become incapacitated, but remain alive. These documents are critically important, and anyone over the age of 18 should have them in place. If you have questions about power of attorney, inheritance or wish to create an estate plan which distributes your assets on your terms, it may be time to speak with an attorney.

 

What Is Divestment Under Medicaid Law?

What Is Divestment Under Medicaid Law?

Divestment is when you or your spouse give away assets belonging to either or both of you and sell assets for less than fair market value. Avoiding or refusing to accept income or assets you are entitled to, such as a pension income or an inheritance would also be divestment.

While individuals and couples often want to get rid of assets so that they can qualify for Medicaid in the event they need long term care, divestment actually results in ineligibility if done within five years of applying for Medicaid. This is referred to as the five-year look-back rule.

If you have divested assets within five years of applying for Medicaid, you will be subject to a divestment penalty period. The penalty period is the amount of time that Medicaid will not cover your long-term care costs in an assisted living facility or nursing home. The length of the penalty period is determined by dividing the value of the assets divested by the average nursing home rate ($287.29 per day as of the writing of this article). The nursing home rate is updated annually. The divestment penalty period begins when you are first eligible to receive Medicaid benefits.

It is important not to confuse the annual tax-free gift exclusion with an exempt transaction for Medicaid purposes. The current annual gift tax exemption is $15,000, meaning an individual may make gifts in the amount of $15,000 to different individuals without having to file a federal gift tax return. Any annual exclusion gifts, however, would still be divestments for Medicaid purposes, and subject to the five-year look back.

Another common misconception regarding divestment is that there is some type of “claw-back” mechanism whereby the individuals who received the divested assets are made to give them back or turn them over to the nursing home. This is simply a myth. Divestment results in ineligibility for Medicaid if done within five years of applying, but no one is forced to give assets back. Ineligibility can have catastrophic results because without having the assets that have been divested, you or your spouse may have no way to pay for care during the penalty period. Proper planning is very important. The rules regarding divestment are complex and you should consult with an attorney familiar with the rules regarding Medicaid and divestment before any disqualifying divestments are made.

 

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