Returning to Work After a Work Comp Injury

Returning to Work After a Work Comp Injury

Absent the lucky few, most Wisconsin workers are considered “at-will” employees. This means absent exceptions for unlawful discrimination (e.g. race, gender, age, religion, etc.), a worker can be fired for any reason, or no reason at all.  However, worker’s compensation injuries are another exception to this “at-will” presumption that makes a work injury a protected category.

Under Wisconsin’s workers’ compensation law, Wis. Stat. § 102.35(3), an employer (at time of injury) who terminates, or unreasonably refuses to rehire, an employee after a work injury is subject to a penalty of up to one year’s lost wages. The purpose behind this law is to dissuade discrimination against employees who have been injured on the job and, assuming there is work available within the worker’s restrictions, make sure the injured worker gets back to work with his former employer. This is yet another outgrowth of the bargain struck between workers and employers under Wisconsin’s worker’s compensation regime:  workers do not get to sue their employers or co-workers for injuries, but they are entitled to a system of no-fault benefits and job protections.

When returning to work, there is a distinction between returning while still healing with temporary physical restrictions versus returning to work with permanent physical restrictions. An employee must provide notice to their employer of any temporary (as well as permanent) restrictions. If the employer can provide work within the temporary restrictions at the same rate of pay, no temporary disability is owed; if the employer can only provide work at lower wages or less hours, the worker is owed temporary partial disability; and, if the employer cannot provide any work, the employee is owed temporary total disability. If an employer terminates a worker while they are still healing, the worker has an unreasonable refusal to rehire claim.

When an injured worker reaches an end of healing or “healing plateau,” the treating physician may assign permanent physical restrictions along with any permanent disability percentage. If the worker is provided permanent work restrictions, they must provide the same to their employer. Under Wis. Stat. § 102.35(3), the employer must offer “suitable employment…within the employee’s physical and mental limitations.” If the worker’s permanent restrictions allow return to their same job at the time of injury, they should be offered it. However, the employer must offer any suitable position available even if different than the position the worker had at the time of the injury. Only when there is truly no work available within the worker’s restrictions can the employer refuse to rehire the injured worker. The employer, not the employee, bears the burden of proving the lack of suitable employment.

The above is not meant to suggest that there is an absolute unassailable right to return to work for the same employer following a work injury. When determining whether there is “suitable employment,” the statute allows for consideration of “the continuance in business of the employer.” This gives rise to the employer’s argument that the nature of business or economic situation dictated its refusal to rehire the injured worker, not the work injury.

Unsurprisingly, these are highly fact-dependent issues and claims. Moreover, unreasonable refusal to rehire penalties are paid by the employer, not the work comp insurance company, which means they are hotly contested and litigated. The above is only a brief snapshot and is not meant to cover all the variations that accompany return-to-work decisions after a work injury; if you have questions, do not hesitate to reach out to one of our worker’s compensation or employment law attorneys.


Non-Compete Agreements Are Ripe for Review

Non-Compete Agreements Are Ripe for Review

As many employers and employees know, non-compete agreements are fast becoming a centerpiece of many employer-employee relationships. A non-compete may not only protect a company’s confidential information from disclosure, but also restrict an employee who leaves to work for a competitor. Non-competes may also describe the duration of such restriction and geographic limitations.

Employers favor such restrictions because they protect their business interests in relation to their competitors. Employees dislike such restrictions, because they inhibit their practical choices when they leave one employer for another. Courts tend to look suspiciously at non-compete agreements because they limit the free flow of labor resources across the broader economy. Yet, when non-compete agreements are carefully drafted, they have been upheld by state and federal courts.

It may soon be time for employers to review their non-compete agreement due to a new presidential executive order that asks the Federal Trade Commission (FTC) to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”

Each state has its own rules that regulate how far non-compete agreements can go in restricting the movement of former employees. Wisconsin’s rules regarding non-compete agreements are found in § 103.465, Wisconsin Statutes. Wisconsin law requires non-compete agreements to be properly limited in duration, scope and geographic area, among other limitations.

What role will the FTC play in changing the non-compete landscape? Most observers believe the agency will first conduct a state-by-state review of non-compete agreements. Then the FTC is likely to propose limits on the types of professions that may be subject to non-compete agreements.

As the landscape for non-compete agreements undergoes federal examination and likely recommendations for changes, employers and employees are well advised to consult with their attorneys for the latest developments with respect to the enforceability of non-compete agreements in Wisconsin and across the nation.


OSHA Speaks: Updated Workplace Guidance for Employers Concerning COVID-19

OSHA Speaks: Updated Workplace Guidance for Employers Concerning COVID-19

Although the Wisconsin Supreme Court ruled on March 31, 2021 that the Governor’s successive masking orders were unlawful, employers in Wisconsin have been uncertain about their duties, under the Occupational Safety Health Act (OSHA), to maintain a safe workplace concerning COVID-19.

On June 10, 2021, OSHA issued an update to its COVID-19 guidance, including a COVID-19 emergency temporary standard that concerns the healthcare industry and updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace for Non-Healthcare Industries.

The updated guidance applies to industries other than healthcare.  It reiterates the following:

Unless otherwise required by federal, state, local, tribal or territorial laws, rules and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.

The updated guidance focuses only on protecting unvaccinated or other at-risk workers in their respective workplaces.

Employers should be aware that the OSHA guidance refers to workplace safety standards.  The U.S. Equal Employment Opportunity Commission (EEOC) still regulates what qualifies as a medical inquiry for purposes of the Americans with Disabilities Act (ADA).  As the nation continues to recover from the COVID-19 pandemic, and barring adverse effects of new strains, employers and employees can generally expect a return to normalcy under the ADA.  This will mean a heightened standard of review by the EEOC with respect to how and when employers ask questions relating to the health of their employees.

For further information or additional discussion points, contact your Anderson O’Brien, LLP attorney.


Employers in Early 2021:  Review, Revise and Communicate FFCRA Leave and Vaccine Policies

Employers in Early 2021: Review, Revise and Communicate FFCRA Leave and Vaccine Policies

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 or by calling 715-344-0890.


Employees’ Voting Rights in Wisconsin

Employees’ Voting Rights in Wisconsin

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.


Wisconsin Employers Take Note:  EEOC Updates COVID-19 Guidance; Addresses Mental Illness Made Worse by the Pandemic

Wisconsin Employers Take Note: EEOC Updates COVID-19 Guidance; Addresses Mental Illness Made Worse by the Pandemic

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

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.


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