SPAHRA

Stevens Point Human Resource Association

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  • 26 Aug 2020 9:37 AM | Anonymous member (Administrator)

    Authored by Dean R. Dietrich

    Everyone is thinking about bringing employees back to work but struggling with the right decision and the right steps to take if employees come back to work.  The initial thought was that employees could return to work after Labor Day.   Some companies are learning that working from home is much easier to accomplish than originally thought.  Other companies are concerned about loss of company focus and company culture if employees stay away from the office.

    In a recent survey of 15 major employers covering approximately 2.5 million employees, 57 percent of the companies have decided to postpone their back-to-work plans because of recent increases in COVID-19 cases.  Almost 50 percent of the companies said they were putting into place additional safety measures such as redesigned work spaces and temperature checks.  Many companies are looking at December 31 as the new date for considering bringing employees back into the workplace.

    The new dilemma is whether employees will be required to be vaccinated when they return to the workplace.  The results are still in question whether there will be a vaccination that is truly effective but there is a lot of consideration on whether or not to require employees to be vaccinated.  Another part of that consideration is whether employees will be required to receive the flu shot unless they have medical or religious reasons for refusing to receive that vaccination.

    Companies are struggling with a number of considerations as they plan for bringing back employees to the workplace:

    • How do you keep the Coronavirus out of the workplace?
    • What requirements will you have for employees coming back to work in the form of at-home screening of temperature or taking temperature at the workplace?
    • What steps will you take to stop the spread of the virus if someone brings it into the workplace?  Plans should be in place to do contact tracing and taking of immediate measures to isolate an individual with symptoms and their workspace.
    • What working conditions will apply when employees return to the workplace?
    • Enhanced cleaning, sanitizing, and social distancing appear to be the two most common considerations.  The wearing of masks is another area of constant debate but also looking to reduce shared workspaces must be a consideration.
    • What type of communication will you have with employees whether on a daily basis or if the virus appears in the workplace?  It is always challenging to determine how often you should communicate with employees to avoid creating more fear but constant education about safety in the workplace is important.

    These are just some of the considerations that a company must reflect upon when planning to bring employees back to the workplace.  Companies must rely upon local health authorities as well as recommendations from the CDC, OSHA, and DOL. 

    If you have questions about this, please contact Dietrich VanderWaal.

    Dean R. Dietrich, Esq.
    Dietrich VanderWaal, S.C.
    530 Jackson Street
    Wausau, WI  54403
    (715) 845-9401

  • 26 Aug 2020 9:35 AM | Anonymous member (Administrator)

    Authored by Dean R. Dietrich

    This blog is a follow up regarding compliance with the Emergency Order involving the requirement of the wearing of face coverings in public buildings. 

    Everyone has been anticipating litigation that would be commenced to block the Emergency Order or that the Senate and Assembly would meet to overturn the Emergency Order.  As of August 17, neither of these actions have taken place.  A lawsuit has been filed in Dane County by a local coffee shop challenging the enforceability of the Emergency Order but that does not appear to be a lawsuit that is embraced by a number of groups.  The lack of action may indicate that various conservative groups are willing to live with the mask-wearing requirement in light of the volatility of the Coronavirus infections.

    It is still safe to say that businesses are taking a variety of positions regarding the enforcement of the Emergency Order.  It would be very challenging if a business denied access to a building open to the public because an individual decides not to wear a mask.  Clearly, the business could contact the police or the local health department to advise that there is a violation of the Emergency Order but the business would not, by itself, be authorized to issue a citation to the individual.

    Here are some common questions and thoughts:

    • Can you stop a person from entering a public portion of a building because they do not have a mask?

    My recommendation is that you post signs indicating that a mask is required in the building and have masks available for individuals to put on as they enter the building.  I do not recommend that you “bar” a person from entering the building because they are not wearing a mask.  This could lead to physical confrontations and there would be questions regarding the action taken by you which could be considered a violation of a person’s right to enter a public building.  The case law is simply not clear on this point.  I believe you need to strongly encourage an individual to wear a mask by providing a mask for the individual but not blocking their entrance into the building.

     

    • Can we require employees to wear a mask?

    You can require employees to wear a mask.  A business entity has the right to set the working conditions for its employees. 

    You can have a general requirement that employees must wear a mask when in the building but you must honor any instance where the employee or visitor indicates that the employee or visitor has a medical condition that prevents the person from wearing a mask.  You have the right to ask for a doctor’s note indicating that the employee or a visitor is not able to wear a mask although you should not inquire regarding the nature of the medical condition that creates that requirement.  The information that you receive should be treated as health information and protected from disclosure to others.

     

    • Can the employer require an employee to wear a shield instead of a mask if the employee has a medical reason for not being able to wear a mask?
    Unfortunately, a shield does not qualify as a mask under the Emergency Order.  I would recommend that you communicate with the employee regarding that option before a decision is made.  I do think the business could require an employee that has a medical reason for not wearing a mask, to wear a shield to at least provide some level of protection to others in the building.  It would be best that the employer provide the face shield for that situation.


  • 7 Aug 2020 3:34 PM | Anonymous member (Administrator)

    Authored by Dean R. Dietrich

    This blog is a follow up to our past blogs and discussions regarding the federal law that provides for paid sick leave benefits and extended family leave (with limited pay options) to employees under certain conditions. This paid sick leave benefit would be provided to an employee (both full-time and part-time) under limited circumstances. This benefit would be provided as a paid benefit and would not be based upon the availability of sick leave or paid time off benefits already earned/accrued by the employee. 

    Generally speaking, there are two types of benefits. The first is 10 days of paid sick leave (at the employee’s regular rate) for limited purposes. There is only one opportunity to receive this paid sick leave benefit. We are not sure whether this benefit will be extended beyond December 31, 2020. The second benefit provides for up to 12 weeks of family leave (minus any family leave already taken) with limited payment of wages depending upon the reason for taking the family leave time off. 

    With regard to the 80 hours of paid leave under the Emergency Paid Sick Leave Act, an employee is eligible to receive this paid benefit if:

    • The employee is subject to a quarantine or isolation order related to the Coronavirus;
    • The employee has been advised by a healthcare provider to self-quarantine due to concerns related to the Coronavirus;
    • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

    The payment under any of these scenarios is based on the employee’s full pay rate up to a maximum of $511 per day and $5,110 total payment. 

     

    There is another payment option that applies under the Emergency Paid Sick Leave Act.  An employee can receive two-thirds (2/3rds) of regular pay for up to 80 hours ($200 per day and $2,000 total) for the following reasons:

    • The employee is caring for an individual who is subject to a quarantine/isolation order or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
    • The employee is experiencing any other substantially-similar condition specified by the Secretary Health and Human Services (none have been specified to date).

    This paid sick leave benefit must be taken in full-day increments (prorated for part-time employees) and cannot be taken as intermittent time off unless the Company agrees to allow such intermittent leave. This 10 days/80 hours of paid sick leave will also count toward the total of 12 weeks of FMLA leave that an employee may receive and would also count in conjunction with an employee who is seeking expanded family and medical leave. 

    Expanded Family and Medical Leave under the Emergency Family and Medical Leave Expansion Act applies in the following situation:

    • The employee is taking time off to care for the employee’s child whose school or place of care is closed or the childcare provider is unavailable due to COVID-19 related reasons.

    The pay under this leave is limited to two-thirds of the base daily pay received by the employee up to a maximum of $200 per day and $12,000 in total. This would not include the pay that an employee may qualify for under the paid sick leave benefit described above. If the employee takes the 80 hours of paid sick leave, the employee will only be eligible for 10 weeks of expanded family leave.

    There are several situations we can anticipate where employees will be requesting time off and seeking benefits under either the Paid Sick Leave Act or the Emergency Family and Medical Leave Act. The likely scenarios are the following:

    • The employee does not wish to return to work because the employee is afraid of being infected by the virus but is not experiencing any symptoms and is not being specifically directed by a healthcare provider to self-quarantine because of being exposed or potentially exposed to the virus. In this case, the employee would not qualify for the paid sick leave benefit unless the employee produces a doctor’s letter indicating that the employee has a medical condition and should not return to work because of potential exposure to the Coronavirus. In the instance of a doctor’s letter, the employee would likely qualify for the paid sick leave benefit of up to 80 hours of pay that is not deducted from any paid time off benefit. The Company must review the doctor’s note to see if the employee qualifies due to a medical condition. 
    • The employee is fearful of sending children to school and therefore wishes to stay home and care for the children instead of exposing the children to a potential infection in the school setting. This employee would not qualify for the paid sick leave benefit or the emergency family and medical leave benefit (both at two-thirds of the base daily rate of pay) because the employee is not caring for a child whose school or place of care is closed but rather is simply fearful of having the child attend school because of the potential for infection by the virus. This analysis may be different if the child suffers from a medical condition that creates a risk of serious illness if the child is infected.

    Recent clarification from the Department of Labor indicates that the emergency family leave benefit (10 – 12 weeks at 2/3rds pay) would apply if a school is open to some students but not for the employee’s child due to scheduling decisions.

    Attached below are updated posters from the Department of Labor which summarizes this benefit. We are likely to continue to see clarification of the Families First Coronavirus Response Act as things unfold.

    Please do not hesitate to contact Dietrich VanderWaal if we can be of assistance in navigating your Coronavirus-related employment matters.

     Quick Tip Poster FFCRA.pdf

    FFCRA Poster Non-Federal.pdf

    Dean R. Dietrich, Esq.
    Dietrich VanderWaal, S.C.
    530 Jackson Street
    Wausau, WI  54403
    (715) 845-9401
    dietrich@dvlawgroup.com
    https://www.dietrichvanderwaal.com/


  • 20 Jul 2020 2:07 PM | Anonymous member (Administrator)

    Authored by Dean R. Dietrich

    One of the most challenging issues being faced by employers is what to do when an employee is afraid to return to work because of fear over being infected by the Coronavirus from the workplace.  This fear comes from the unknown – the unknown about the effects of the virus, the unknown of how the employer is protecting employees in the workplace, and the unknown of how the virus can be contacted by the employee. 

    We know that the virus is transmitted by coughs and sneezes, but we do not know whether the virus can really be caught by contact with surfaces or whether the virus is simply transmitted in the air around us.  Recent reports by the media show the very dangerous aspects of this virus but at the same time, many people are infected with the virus and have little or no negative effects.  It is easy to see how employees can be afraid of returning to the workplace with all the uncertainty that exists.

    Employers have the right to require that their employees report to work and work in the settings that exist.  Case law has moderated over time, but the most recent rulings hold that attendance at work (or being in the workplace) is an essential function of almost all jobs and employers can insist upon employees working in their regular work setting. 

    The difficulty arises when an employee has an underlying medical condition that is causing the employee to be fearful of being infected by the virus especially because of the unknown consequences of an infection.  If an employee does not have an underlying medical condition, the employer has a right to insist that the employee return to the work setting.  Employers may choose, but are not obligated, to provide some level of accommodation to the employee afraid to come to work by allowing a limited time of working at home or allowing the employee to take a leave of absence (typically without pay) until there is more certainty regarding the virus and its effects.  This is not required and may not be a viable option because every employee would then want to work from home or take some type of leave of absence until the Pandemic has passed.

    The more challenging situation arises when an employee is subject to an underlying medical condition that would require the employer to make reasonable accommodations because of the underlying medical condition.  The obligation flows from the Americans with Disabilities Act and the Wisconsin Fair Employment Act which requires an employer to make reasonable accommodations for an employee with a disability.  The typical scenario that an employer should follow is:

    • Engage in the interactive process with the employee fearful of returning to work.  This means that the employer identifies the underlying medical condition, determines that there is a duty to accommodate the employee, and then meets with the employee to discuss what, if any, accommodations may be appropriate based upon the underlying medical condition and the circumstances in the workplace;
    • The employer is not obligated to automatically agree to the accommodations being requested by an employee.  The employer must consider those requests and then make a determination whether there is an accommodation that could be made and whether such accommodation creates an undue hardship for the company.  This analysis will focus on the “cost” of the accommodation as well as the impact of an accommodation on the ability of the company to conduct its business and have the employee perform the work necessary for the functioning of the company;
    • The employer must communicate with the employee as to any final decision about an accommodation and must document (for its files) the analysis that it engaged in when determining whether or not an accommodation would work and whether the accommodation was reasonable (meaning not creating an undue hardship). 

    A final decision on an employee requesting an accommodation because of fear or concern about infection from the Coronavirus must be made on a case-by-case basis and will depend upon many factors, including the medical condition of the employee and the reasonableness of the accommodation request.  It seems that the alternatives for employers are centered around giving a leave of absence without pay, allowing the employee to work from home, or providing a different work schedule that will help the employee avoid situations of potential infection but at the same time having the employee perform productive work for the company.  The two important considerations are: (1) engage in the interactive process with the employee; and (2) document your decision as to what, if any, accommodation you will be making for the work situation of that employee.

    Remember, OSHA requires an employer to provide a safe workplace for its employees.  We do not have specific rulings on the standard that will be applied for protection against the Coronavirus but it is clear that employers must consider the guidelines from the CDC and the WEDC and then determine whether or not the company can fully comply with the guidelines that have been suggested.  A reasonable standard will apply to these decisions by the company to modify the workplace setting to provide protections for employees.  The company must strive as much as possible to comply with the specific guidelines for its type of business. 

    If you have questions about this, please contact Dietrich VanderWaal, S.C.

    Dean R. Dietrich, Esq.
    Dietrich VanderWaal, S.C.
    530 Jackson Street
    Wausau, WI  54403
    (715) 845-9401
    dietrich@dvlawgroup.com
    https://www.dietrichvanderwaal.com/

     

  • 29 May 2020 12:50 PM | Anonymous member (Administrator)

    Authored by: Dean R. Dietrich

    Employers are trying to decide whether or not to temperature test employees who are returning to work and maybe even temperature test customers/contractors who enter company property.  Because of all of the uncertainty regarding the Coronavirus, federal agencies have recognized the importance of temperature testing and have “loosened” restrictions about the testing of employees and even customers. 

    The testing of an individual’s temperature is still considered a medical examination and the results must be protected as confidential medical information.  However, employers are more free to engage in this testing to protect individual employees and others in the workplace. 

     

    A body temperature above 100.4 does not necessarily mean that an individual has the Coronavirus but at least it is a quantifiable screening test that can be used by employers to protect others in the workplace.  It is readily accepted that an employee who tests for a temperature of 100.4 or above should be sent home and not allowed into the workplace.  The same is true for visitors.  The only other options would be for the company to put the employee with a high temperature in an isolated area to avoid any contact with other employees.

     

    Here are other considerations:

     

    • The testing should be done by a medical professional or person trained by a medical professional how to appropriately engage in the temperature testing.
    • The person conducting the temperature test should be given appropriate protective gear including the use of a mask and/or a face shield and gloves to avoid any elements of possible contamination.
    • It is certainly preferred that the testing should be conducted with a contactless thermometer that would either test the forehead through a swipe process or test in the ear without contacting any fluids of the testee.  It may be challenging to find the appropriate equipment and some authors have suggested that you should not engage in testing if your only alternative is to test for temperature by using a mouth thermometer.  If you are going to use a mouth thermometer, the best practice is for the tester to be equipped with all personal protective equipment and use disposable gloves for every test.  This simply may not be practical.
    • It is best to have the time spent by an employee being tested be considered work time rather than face a legal challenge in the future for failure to pay the employee for necessary steps to enter the workplace.  We do have several “donning and doffing” cases where the employer did not have to pay for the time spent by an employee putting on necessary work clothing; however, that is not a guarantee that time spent in checking for fever would not constitute work hours for the employee.
    • The information gained from testing for a high temperature should be considered confidential and protected from disclosure to others.  Records of the testing should be kept in a separate file and not included as part of the personnel file of the individual employee. 
    • If an employee tests for a high temperature (100.4 degrees or above), the employee should be immediately screened into a separate waiting area and arrangements made for the employee to return home and have his/her health monitored.  Special efforts should be undertaken to make this process as private as possible to avoid rumors and to eliminate any hysteria from others.
    • The company should create a specific notice that it sends to all employees regarding the testing requirements and the policy that employees are not allowed to enter the workplace until they have completed a temperature test.  This policy should be communicated broadly to employees with postings at the entranceways to the workplace.  If you have a unionized workforce, the information should be communicated to the local union representatives and the company should consider any input from the union officials.
    • Another alternative is to ask each employee to self-test and record their temperature before leaving to come to work and then providing an affidavit/statement when arriving at work of the test results.  This option, of course, is much harder to validate but may be an acceptable alternative for those work settings where employees are able to successfully implement social distancing guidelines.

    The impacts of the Coronavirus vary from person to person.  Many individuals are willing to return to normal and are not concerned about the potential of catching the virus.  Other employees, especially those with underlying health conditions, may be very concerned about the potential of catching the virus and facing severe medical conditions.  Employers must do their best to balance these differing opinions about the virus and do their best to ensure a safe work environment for their employees.  We have yet to see any cases regarding the duty to provide a safe workplace under state law or OSHA requirements, but that may be a thing of the future.

    If you have questions, please contact Dietrich VanderWaal, S.C. at (715) 845-9401 or (715) 574-4747.

    Dean R. Dietrich, Esq.

    Dietrich VanderWaal, S.C.

    530 Jackson Street

    Wausau, WI  54403

    (715) 845-9401

    dietrich@dvlawgroup.com

    https://www.dietrichvanderwaal.com/


  • 29 May 2020 12:47 PM | Anonymous member (Administrator)

    Authored by: Dean R. Dietrich

    A number of questions have arisen regarding the steps that must be taken by an employer when faced with an employee with an underlying medical condition that may expose the employee to severe Coronavirus symptoms.  Questions have ranged from whether the employer can prohibit the employee from returning to work to what if the employee does not request any type of special consideration (accommodation) when talking about returning to work.

    As you all know, the Americans with Disabilities Act (ADA) requires an employer to provide reasonable accommodation to a qualified employee with a disability except where the accommodation would cause an undue hardship.  There is a provision under the ADA which provides that an employer is not required to make an accommodation if an employee would pose a “direct threat” to his/her medical condition by returning to work and performing essential job functions.  While this law exists, it is unclear how it should be interpreted in instances where an employee has an underlying medical condition that could cause severe symptoms if the employee was infected by the Coronavirus.

    The Equal Employment Opportunity Commission (EEOC) and the Centers for Disease Control (CDC) have identified the categories of persons who would be at high risk for severe illness if infected by the Coronavirus.  These employees include:

    • Older employees over age 65;
    • Employees suffering from serious underlying medical conditions including:
      • Chronic lung disease;
      • Severe asthma;
      • Serious heart conditions;
      • Immunocompromised systems (i.e. Diabetes, cancer);
      • Severe obesity (BMI 40 or higher);
      • Chronic kidney disease (requiring dialysis); and
      • Liver disease.

    The CDC suggests that if there is an employee suffering from one of these medical conditions or at this age level or both, the employer should encourage teleworking if available and offer job duties that would minimize contact with customers and other employees. 

    The more challenging question is whether the underlying medical condition of the employee constitutes a “direct threat” to the employee such that the employer can decide to exclude the employee from the workplace.  A decision to exclude an employee from work is a very difficult decision and requires that the employer meet a high standard.  A determination must be made on an individualized basis “based on a reasonable medical judgment about the employee’s disability and not just based upon the disability in general.” 

    The employer must use the most current medical knowledge and the best available objective evidence when conducting that analysis of a possible direct threat.  The employer must consider the following factors:

    • the duration of the risk;
    • the nature and severity of the potential harm;
    • the likelihood that the potential harm will occur;
    • the imminence of the potential harm;
    • the severity of the Pandemic in the particular area of the employer;
    • the employee’s current health;
    • the job tasks regularly performed by the employee;
    • the likelihood that the employee would be exposed to the virus , including measures that the employer has taken to protect all workers from being infected.

    The employer also must engage in an interactive process by speaking directly with the employee and discussing the concerns of the employee and the concerns of the company in being able to protect both the employee and others.

    Employers are making decisions about how to protect their employees from any spread of the virus.  The Guidelines from the CDC, the WEDC, and your local Health Department are the major areas to consider.  Dealing with an employee with an underlying medical condition is something that also must be looked at very closely and addressed on an individualized basis for the protection of the employee and all other employees.

    We will keep you apprised of the latest news that may be of assistance to your company.  However, please feel free to contact us directly if you have additional questions or concerns. 

     

    Dean R. Dietrich, Esq.

    Dietrich VanderWaal, S.C.

    530 Jackson Street

    Wausau, WI  54403

    (715) 845-9401

    dietrich@dvlawgroup.com

    https://www.dietrichvanderwaal.com/

     


  • 18 May 2020 12:38 PM | Anonymous member (Administrator)

    Authored by Dean R. Dietrich

    Employers, like everyone else, are looking to return to the past, although many say we will be facing a “new normal” that will change how and where we do things.  Employers need to start thinking about what does it mean to return to work and what does return to work look like in the “new normal.” 

    We need to start by thinking of the concerns that need to be addressed as we start back to work in our “new” work environment.  The concerns can be broadly defined in these areas:

    • Protecting the employee;
    • Protecting the client/customer;
    • Ensuring a safe (and clean) workplace;
    • Dealing with employee fears and new accommodation requests.

    Businesses need to think about how they are going to modify their workplace to provide for safety for their employees and the public/customers.  This may involve the redesigning of workspace and installing different types of protective covering or dividers to ensure as much protection as possible. 

    Employers may want to consider the following:

    • Improve the ventilation system and increase the amount of outdoor air that circulates in this system;
    • Improve hand hygiene opportunities for employees and for worksite visitors.  This may include providing tissues and no-touch disposal receptacles and soap and water or alcohol-based hand sanitizer;
    • Discourage unnecessary travel and require employees who travel outside of the state to identify their travel activities before returning to work;
    • Consider a phased-in approach to people returning to the workplace or flexible scheduling that will limit the number of employees in close proximity to each other in the workplace;
    • Consider testing of employees before they enter the workplace, including temperature testing to determine if an employee may be exhibiting signs of being infected;
    • Decide whether to require the wearing of masks as part of the regular work clothing of the employees.  This may involve negotiations with a local union over a change in working conditions;
    • Consider restricting the use of shared items and spaces such as staplers and other supplies used in the workplace;
    • Consider creating an emergency communication channel for employees who are diagnosed with the virus and for employees who may have questions regarding the workplace;
    • Consider the use of 14-day quarantine periods for individuals involved in travelling or other off-site activities;
    • Consider the use of tele-working as a way to continue productivity on a rotating schedule with employees in and out of the office;
    • Follow directives from the local health department regarding cleaning activities and cleaning of surfaces in the workplace;
    • Consider expanding the wearing of personal protective equipment in work locations where employees are required to be in close proximity to each other;
    • Perform regular environmental cleaning and disinfection of the work area to preserve the environment from contamination;
    • Perform enhanced cleaning and disinfection efforts if an employee is identified as having symptoms of the virus or been diagnosed with the virus;
    • Discourage unnecessary travel and require employees who travel outside of the state to identify their travel activities before returning to work;
    • Actively encourage sick employees to stay home and require employees to notify the employer if the employee is exhibiting any tattletale symptoms of the virus;
    • Educate employees on how to prevent the transmission of the virus and how to remain safe;
    • Identify a workplace coordinator who will be responsible for all aspects of Coronavirus safety concerns and virus transmission in the workplace;
    • Be prepared to respond to employee concerns about workplace safety and virus infection and be prepared to provide assurances regarding the safety in the workplace.

    There is no one simple answer to how we frame the return to the “new” workplace.  Every business and every location needs to consider what will be best for employees and customers.  I think the only “truism” that we can rely upon is that we all must adjust to the “new” normal in order to be safe for our employees, our customers, and for society in general. 

    The Center for Disease Control has issued Interim Guidance for various industries; it can be found at https://www.documentcloud.org/documents/6883734-CDC-Business-Plans.html.  The Wisconsin Economic Development Corporation has also issued Guidance for Preparing Workplaces for COVID-19.  It can be found at https://wedc.org/reopen-guidelines/.  Copies of parts of the Guidance are attached at the link below to provide additional suggestions for employers/businesses to embrace as part of the return to the “new” workplace.

    Workplace During the COVID-19 Pandemic.pdf

    Dean R. Dietrich, Esq.
    715-845-9401
    dietrich@dvlawgroup.com 


  • 14 May 2020 10:14 AM | Anonymous member (Administrator)

    Authored by Dean R. Dietrich

    As you know, the Wisconsin Supreme Court has struck down Emergency Order No. 28 (except as it applies to school districts and school buildings).  The Court held that “Palm’s Emergency Order No. 28 is declared unlawful, invalid, and unenforceable.”  In particular, the Court stated that it concludes “that Palm’s Order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of Wis. Stat. Section 252.02, upon which Palm claims to rely.”  The essence of the Court decision is that the Emergency Order No. 28 must be considered a “rule” and may only be adopted after following particular statutory procedures for the issuance of an emergency rule.

    What does this really mean?  Unfortunately, the answer to that question is not particularly clear.  A number of Counties and Cities have issued their own Emergency Order and each of those Orders are different and contain different requirements.  Many other Counties and Cities have indicated that they will not take specific action and will wait for guidance from someone.  The someone may be the Legislature/Governor who supposedly will be meeting over the next several days to attempt to reach an agreement on an appropriate Emergency Order for the entire state.  The Court implies that its decision is not effective until the end of the day on May 20; however, a number of businesses have begun reopening and conducting business as usual.  The impact of all of this is unclear.

    For now, the best strategy is to continue to follow the requirements of Emergency Order No. 28 until May 20 and see if additional guidance comes from the State or local government units. 

    If you have questions about this, please do not hesitate to contact us.

    Dean R. Dietrich
    715-845-9401
    dietrich@dvlawgroup.com

  • 7 May 2020 4:29 PM | Anonymous member (Administrator)

    Authored by: Dean R. Dietrich

    The Wisconsin Supreme Court finished its oral argument session in the lawsuit by the Legislature challenging the issuance of Emergency Order #28 by the Secretary-Designee of the Department of Health Services (DHS).  This Emergency Order is an extension of the Emergency Order #12 issued by the Governor which expires on or about May 12.  Emergency Order #28 continues many of the requirements previously incorporated in Emergency Order #12 regarding the closing of schools and the closing of non-essential businesses except providing for limited curbside services. 

    The argument before the Supreme Court was heated and ran for almost two hours.  The primary argument of the Legislature was that the Emergency Order constituted a “rule” that needed to be approved by the Legislature through an established process of legislative review.  The primary argument of the Governor was that the Emergency Order was properly authorized under State Statutes and necessary to address the Pandemic crisis faced by the entire State. 

    One of the more hotly debated questions before the Court was whether the State Statutes authorized a single person (the Secretary-Designee of the Department of Health Services) to issue rules and regulations that could result in criminal penalties for persons who violated the Order.  The Supreme Court focused significantly upon what was the proper degree of authority granted to the Secretary-Designee even in this Pandemic crisis setting.

    We anticipate that the Supreme Court will render a decision by the end of this week or perhaps next Monday.  It is clear that the Supreme Court majority is troubled by the breadth of the Emergency Order that was issued by the Secretary-Designee.

    We will keep you advised about developments.

    Dean R. Dietrich


  • 22 Apr 2020 1:31 PM | Anonymous member (Administrator)

    Authored by Dean R. Dietrich

    As you know, the Wisconsin Legislature and Governor Evers have signed a Coronavirus Relief Law known as 2019 Wisconsin Act 185.  There are several important provisions regarding employment law contained in this Act:

    • The one-week waiting period for unemployment compensation benefits has been suspended beginning March 12, 2020, and running through February 7, 2021.  Individuals applying for unemployment compensation benefits will receive unemployment benefits effective upon application.  The funds for this initial week of benefits will be paid by federal government funds sent to the State.
    • Employers will not be charged for unemployment benefits claimed by an employee of a business during the course of the public health emergency.  The benefits will be paid by the Balancing Account if it is determined that the unemployment claim is related to the Coronavirus Pandemic.  This relief from a “charge” against a specific business unemployment account runs from March 12, 2020 through December 31, 2020.  Employers must carefully fill out claim information in order to document that the unemployment claim is based upon action taken by the business related to the Coronavirus Pandemic. 
    • The Act suspends the obligation of an employer to provide for review or to provide copies of a personnel file to an employee or an employee representative.  This limitation on the obligation to provide personnel records extends for the length of the emergency declared by the State.  While I am not sure of the rationale behind this change, it is now effective and limits the obligation to provide personnel records to an employee.

    As you may know, the Emergency Declaration to extend the “Stay At Home” Directive is being challenged in the Wisconsin Supreme Court.  We will continue to monitor the status of that litigation. 

    If you have further questions or need clarification, please contact Dean Dietrich of Dietrich VanderWaal at (715) 574-4747.

    Be safe.


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