SPAHRA Blogs

Harassment Rules Revisited-What's Next?

Fri, 13 Feb 2026 16:45:24 GMT

Authored by Dean R. Dietrich

The Equal Employment Opportunity Commission (“EEOC”) has taken action to withdraw the Commission Enforcement Guidance regarding harassment in the workplace (a 200-page document). While the focus of the announcement is on the language that provided protections for trans employees, the Commission decided to withdraw the entire Guidance document which included frequently asked questions and examples of various types of harassment in the workplace and what steps should be taken by an employer to address those situations.

The withdrawal of the Enforcement Guidance does not change the law, and employees are still protected from events of harassment in the workplace. It is unfortunate that assistance given to employers on how to address harassment has been taken away at the federal level. There is still potential for complaints being filed with the EEOC and investigations being conducted by the EEOC but one must wonder whether those complaints will be aggressively acted upon by federal authorities.

It is also important to remember that the State of Wisconsin (through the Wisconsin Fair Employment Act) will aggressively investigate claims of harassment in the workplace. It will involve a hearing process when a complaint is filed with the Equal Rights Division (“ERD”) and can take a very long time.

Companies should continue to enforce the federal and state law about harassment in the workplace and more importantly, employers must continue to do workplace harassment training to ensure a safe and welcoming work environment for all employees. The removal of the Enforcement Guidelines on workplace harassment should not change that effort.

CASE TO WATCH

A case pending before the 3rd Circuit Court of Appeals (in the State of Pennsylvania) is a case to watch for human resource professionals. A university professor was denied the accommodation of teaching remotely on the basis that she should have expected to be required to engage in in-person instruction which was deemed an essential function of her position. The job description for her position did not identify in-person instruction as an essential function and the university did not have a written policy addressing that requirement. It will be interesting to see if the courts will insist upon written declarations in some fashion that an employee must expect to come to work as part of their job responsibilities.

What's NOT Happening in Employment Law

Tue, 06 Jan 2026 16:52:49 GMT

Authored by Dean R. Dietrich

Usually I write about new court decisions or other actions that have changed the landscape of employment law at the state and national level. This blog is different – it is about several decisions that have been made leaving the state of employment law exactly the way it is. This is welcome relief for human resource professionals because we do not have to think about changing how we function and how we give advice.

The United State Supreme Court recently made a number of decisions that do not change the landscape of employment law. A summary of the decisions includes:

The U.S. Supreme Court denied a request by a union to review a lower court ruling that allowed employers who are subject to a claim of violating the National Labor Relations Act from seeking to block the action by the National Labor Relations Board due to a proper legal challenge to the Board decision or board conduct. This means that employers still have the opportunity to file a legal challenge against the NLRB Board action.
The U.S. Supreme Court refused to consider an appeal by a restaurant worker who claimed she was unlawfully terminated after a diabetic episode experienced in the workplace and thereby maintained the burden shifting process to litigate a claim of discrimination. Under the burden shifting test, the complaining party must show that they have a prima facie case by showing their inclusion in a protected category and that adverse employment action was taken against them. The employer then must show legitimate, non-discriminatory reasons for taking adverse employment action. If that is shown, the complaining party must then show that the legitimate reasons were a pretext for acting based upon a discriminatory reason. This is the standard process for determining whether discrimination has occurred and that process stays the same.
The U.S. Supreme Court refused to consider a case from a Christian baker in California who had a policy against selling baked goods for same sex ceremonies. The California Appeals Court determined that such policy was unlawful discrimination by the baker’s business, and the U.S. Supreme Court let that ruling stand. This acknowledges the existence of state policy on unlawful discrimination.
The U.S. Supreme Court refused to consider a case involving the dismissal of a disability bias suit by a former firefighter when the former employee alleged that he was forced to retire because he was given a work assignment that aggravated an injury suffered by the employee. The U.S. Supreme Court refused to consider a ruling by the 10th Circuit Court of Appeals that dismissed the case brought by the former firefighter. This again allowed the employer to continue their practices of requiring employees to perform necessary work within the job description of the position.

All of these decisions show that the precedent of previous employment law decisions will continue which provides stability for human resource professionals when providing advice to their company on employment law issues.

Return to Work???

Wed, 26 Aug 2020 14:37:43 GMT

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

Complying With Mask Order

Wed, 26 Aug 2020 14:35:02 GMT

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.

Time Off for Employees

Fri, 07 Aug 2020 20:34:00 GMT

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/

Employee Afraid to Come Back to Work - Options

Mon, 20 Jul 2020 19:07:43 GMT

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/

To Test or Not to Test - Temperature That Is

Fri, 29 May 2020 17:50:24 GMT

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/

Allowing the Health-Challenged Employee to Return to Work

Fri, 29 May 2020 17:47:09 GMT

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/

What Does Return to Work Mean in the "New Normal"?

Mon, 18 May 2020 17:38:58 GMT

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

Wisconsin Supreme Court Decision - Emergency Order 28

Thu, 14 May 2020 15:14:16 GMT

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

Supreme Court Argument Regarding Emergency Order 28

Thu, 07 May 2020 21:29:29 GMT

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

Employment Law Statutes - Coronavirus Relief Package

Wed, 22 Apr 2020 18:31:05 GMT

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.

Complying with Discrimination Laws when Questioning Employees

Tue, 21 Apr 2020 16:41:45 GMT

Authored by Dean R. Dietrich

A number of questions have been raised about the ongoing right of an employer to question the medical condition of an employee who may call-in sick or exhibit some of the characteristics of the Coronavirus infection. The Equal Employment Opportunity Commission (EEOC) issued some Technical Assistance guidance last Friday that helps employers understand their rights and limitations.

Under the new Technical Assistance, the EEOC gave broad direction to employers:

Employers can inquire about potential symptoms of the Coronavirus infection when an employee calls in and indicates that the employee cannot report to work due to sickness. The inquiry should be focused on the traditional symptoms identified for this condition, being fever, chills, cough, shortness of breath, or sore throat. Local state Health Departments may identify additional symptoms that can be inquired about.

Employers can check each employee for a fever when the employee reports to work. This is considered a medical examination under the Americans with Disabilities Act; however, the potential of community spread of the virus will allow employers to exercise additional flexibility in testing for a fever before an employee is allowed into work.

Employers can disclose the name of an employee that has been diagnosed with the COVID-19 virus in situations where the employer needs to document or verify others who may have been in contact with the employee.

Employers can screen an employee after making an offer of employment, including taking the temperature of a prospective employee before the employee is allowed to report to work.

An employer can delay the start date for a new employee who is exhibiting symptoms of the COVID-19 virus and even withdraw an offer of employment if the employer needs the prospective employee to start work immediately.

An employer may not discriminate against an applicant for employment who is age 65 or older or pregnant just because the prospective employee would be considered at greater risk for infection and have greater risk of lethal symptoms of the virus.

Employers must remain sensitive to requests for accommodation from an employee that has underlying disabling conditions to address potential risk of COVID-19 infection; however, the standard of undue hardship still remains in effect and is still part of the deliberations regarding a potential accommodation for an employee.

Employers must still engage in the interactive process and request information from employees who are seeking an accommodation for working conditions due to the COVID-19 virus. Employers may take steps to provide a temporary accommodation for an employee who is concerned about reporting to work due to potential virus exposure but again, the undue hardship standard will apply.

The Technical Assistance from the EEOC can be found on the EEOC website. It is important to recognize that employers have the right to make further medical inquiries in order to address potential circumstances where the virus could cause further contamination in the workplace.

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

Eligibility for Expanded Family and Medical Leave - Caring for Child

Thu, 16 Apr 2020 16:06:57 GMT

Authored by Dean R. Dietrich

There continues to be a great deal of questions about the paid benefit that employers are required to provide to an employee who is off work due to an obligation to care for a child in the following circumstances:

1. The school that the child attends is closed;

2. The place of care that the child goes to is closed;

3. The normal childcare provider for the child is unavailable.

Please remember that in each of the above instances, the action must be related to a Coronavirus event.

The Department of Labor has issued a new Poster for the various paid leave entitlements under the Families First Coronavirus Response Act. Under this Poster and under the Regulations covering the Act, an employee is entitled to take up to 12 weeks of Expanded Family and Medical Leave during the period of April 2, 2020 through December 31, 2020. These 12 weeks run concurrently with any 12 weeks that an employee may claim under the existing Family and Medical Leave law. As a result, the total amount of leave that an employee could take may be reduced if the employee has already taken other Family and Medical Leave.

In addition, if an employee is taking this Expanded Family Leave, the employer may require the employee to use other leave that is available to the employee under Company Policies such as personal leave or vacation. That time (personal leave or vacation) would run concurrently with the Expanded Family Leave and not constitute an extension of the available 12 weeks.

The most confusing aspect of this Expanded Family Leave for taking care of a child is the amount of pay that an employee may receive under the Act. An employee is eligible to receive two-thirds of the regular rate of pay that the employee received times the scheduled number of hours per week. A part-time employee would receive the two-thirds pay for the normal hours that the employee worked per week prior to taking the time off.

The first two weeks of Expanded Family Leave is without pay OR the employee may be allowed to use paid sick leave under one of the other provisions of the Act is qualified. Further, the employee could take other paid benefits provided by the employer if available for the first two weeks of this Expanded Family Leave. After the first two weeks, the employee is eligible to take Expanded Family Leave for an additional 10 weeks with pay at the two-thirds rate. There is a cap on the amount of pay that an employee is allowed to receive during this additional 10-week period – the employer is required to pay up to $200 per day or $12,000 in total pay to the employee. The Regulations reference $10,000 in aggregate payment to the employee but the Poster refers to $12,000 as the total payment under this Extended Family and Medical Leave provision which I believe includes the first $2,000 total which is referenced under different qualifying conditions.

It is clear that the maximum amount of pay that an employer must provide is a maximum of $200 per day and $10,000 in total pay for the 10 weeks that the employee may take after the first two weeks (which would likely be without pay). Under the maximum, an employee could receive $1,000 per week ($200 per day x 5 days) and be eligible for 10 weeks of that pay. This is different than the 80-hour limitation that applies for any other qualifying reason under the Extended Family and Medical Leave or the Paid Sick Leave benefits.

Employers can take a deduction from their social security tax payments for the amount of money paid to an employee under the Extended Family and Medical Leave provision.

Compliance with Special Leave Laws

Thu, 16 Apr 2020 16:05:32 GMT

Authored by Dean R. Dietrich

Several questions have come up regarding compliance with the Families First Coronavirus Response Act. As you know, this Act provides Emergency Paid Sick Leave and Emergency Extended Family and Medical Leave (with limited pay for employees taking this extended leave). Questions that have come up pose interesting interpretations under these two leave benefits.

The first question involves exempting certain employees from coverage under these two new and special leave benefits. In other words, can an employer (especially a public employer) determine that an employee is eligible for Paid Sick Leave but not for the Extended Family and Medical Leave (with limited pay provisions). The Department of Labor has issued new regulations in Section 826 entitled “Paid Leave Under the Families First Coronavirus Response Act”. Under these regulations, it is strongly implied that a public sector employer can exempt employees from receiving one of the benefits while being eligible to receive the other leave benefit. While this may not make sense, the Regulations recognize that employees who qualify under the definition of “healthcare provider” and “emergency responder” could be excluded from the Paid Sick Leave or the Expanded Family and Medical Leave. The reference to “or” provides grounds for deciding whether an employee that meets the broad definition of emergency responder would qualify for one of the benefits but not the other benefit. Employers should be careful to clearly document the rationale for treating an employee differently under each of these benefits.

The more interesting question in how you coordinate the Paid Sick Leave benefit and the Extended Family/Emergency Leave benefit when an employee is asking for time off to care for a child due to school or a place of care being closed or the unavailability of childcare services. An employee can claim the use of Paid Sick Leave for the first two weeks of requested leave for this reason and then can claim Extended Family/Medical Leave (with paid benefits) for the second two weeks (or 80 hours) of requested time off to care for a child due to school or childcare being closed or the lack of available childcare. Additional time off can be taken under the regular FMLA law up to a total of 12 weeks.

The Regulations do clarify that the first two weeks claimed by an employee for this purpose is paid at the two-thirds rate rather than the full-rate. The second two weeks (or 80 hours) is also paid at the two-thirds rate. In other words, under these new leave benefits, an employee who is unable to work or telework because of a child being at home due to a school closing or a daycare closing or the lack of availability of childcare, can receive four weeks (or 160 hours) of pay at the rate of two-thirds of the employee’s normal rate of pay. Any leave beyond the first 160 hours would be considered without pay and subject to the same conditions as regular family/medical leave. This means that the employer could require the employee to use paid time off or vacation benefits during that time. In addition, the employer may allow an employee to supplement the time off at the rate of two-thirds pay by using sick leave, PTO or vacation to make up the difference to match the full-pay rate for the employee.

These Regulations provide clarification regarding the intersection between Paid Sick Leave, Extended Family/Medical Leave and regular family/medical leave. This benefit continues through December 31, 2020. It remains to be seen whether these special leave benefits will continue after that date.

Coronavirus Infections - Next Steps

Mon, 13 Apr 2020 16:14:03 GMT

Authored by Dean R. Dietrich

We have all heard that Coronavirus infections in the State of Wisconsin may be “peaking” sometime in the next seven to ten days. That does not mean that we are done with the possibility of infection by the virus, but it does mean that we are moving in the right direction.

We need to start thinking now about what steps we should take when employees are allowed to return to work or at least, more flexibility is offered to businesses to have people return to the workplace. Here are some thoughts and considerations:

Employers have the right to test the temperature of employees before they enter the workplace. Employers should have thermometers that do not involve fluids but involve checking temperature from a “head swipe” or testing in the ear. Federal regulations allow for employers to do this testing but it is important to keep information learned from the testing in a confidential format.
If the temperature of an employee is at 100 degrees or above, the employer should pull that employee aside and discuss alternatives for the employee returning home. Employers should do everything possible to keep that action confidential so it does not spread amongst the workforce and protects the privacy of the employee.
The employer should do everything possible to determine where the employee worked and who the employee came in contact with. This would involve interviewing the employee first and then giving notice to those other employees that they may have been affected by the employee’s medical condition. Again, the name of the employee should be protected as much as possible.

It has been determined that the temperature test and the results would not constitute a medical examination in violation of the Americans with Disabilities Act or the Privacy Regulations provided the business tests everyone and does not discriminate and test only a certain group of employees.
If an employee tests for a fever or exhibits other symptoms of the virus, efforts must be undertaken to segregate the employee immediately and make arrangements for the employee to return home. The employee should be placed on a 14-day self-quarantine and the employer should consider whether the employee is eligible for certain paid sick leave benefits. Again, the employer should take all steps possible to prevent the identity of the employee being disclosed to other employees although disclosure would be allowed to those management employees who have a “need to know” reason.

The various regulations suggest that an employer should contact the local public health agency for further guidance in how to address the potential contamination in the workplace. This may involve additional cleaning efforts and potentially the self-quarantine of other employees from a particular work area.

Our obvious hope is that we do not have to face this situation of potential contamination in the workplace. It does behoove employers to start thinking about this type of situation and how to properly address the circumstances.

If you have questions, please do not hesitate to contact us at Dietrich VanderWaal, S.C.

dietrich@dvlawgroup.com

(715) 845-9401

https://www.dietrichvanderwaal.com

Questions Regarding Families First Coronavirus Response Act

Thu, 02 Apr 2020 15:16:12 GMT

Authored by: Dean R. Dietrich

Several questions have come up regarding compliance with the Families First Coronavirus Response Act.

First, questions have been raised as to which employees are covered under the Act and whether there are exemptions from coverage which would mean those employees would not be eligible for the emergency paid sick leave or the extended family/medical leave. Generally, any employee that meets the identified conditions for either the emergency paid sick leave or the extended family/medical leave would be eligible for the benefit. This applies to any business that has fewer than 500 employees. There are exemptions for public sector employers relating to those employees that would be considered “healthcare providers” or “emergency responders” who would not be eligible for receiving emergency paid sick leave. An emergency responder is defined very broadly as an employee who is necessary for the provision of transport, care, healthcare, comfort, and nutrition of patients, or whose services are otherwise needed to limit the spread of the Coronavirus. There is a long list of public sector employees that would be exempt from receiving these two different leave benefits including police officers, firefighters, emergency medical technicians, paramedics, public works personnel, and persons with special skills and training in operating specialized equipment. Thus, public sector employers can exercise discretion over which employees are eligible for the extended benefits.

The second question that has come up concerns the payroll tax credit that employers are eligible to receive if they provide emergency paid sick leave or expanded family/medical leave under the new law. Employers are allowed to deduct amounts from their social security payroll tax for qualified wages paid from April 2, 2020 through December 31, 2020. This applies if the employer provides a paid benefit to employees. We are attaching an article from another law firm that provides general background information regarding the payroll tax credit relief that can be obtained under this new emergency leave law. Click here to view the article: Lexology - Employers Receive Payroll Tax Credit.pdf

We will continue to monitor this situation and provide more background information as needed.

Expansion of Unemployment Benefit CARES Act

Wed, 01 Apr 2020 15:11:10 GMT

Authored by: Dean R. Dietrich

As you know, Congress has passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES”) which is an intended stimulus package in response to the virus pandemic. Included in the CARES Act are provisions that provide for a significant expansion of unemployment insurance benefits. There are three (3) federally funded Programs – Pandemic Unemployment Compensation, Pandemic Emergency Unemployment Compensation, and Pandemic Unemployment Assistance Programs which are part of the new federal law. At this time, there is very little specific information about how all of these Programs will be applied in individual settings; however, it appears that the new Programs will provide a very expanded unemployment compensation benefit for those employees who are laid-off (furloughed) from employment due to the Coronavirus.

Here is what we know so far:

The Pandemic Unemployment Compensation Program provides a substantially increased unemployment insurance benefit to qualified employees. Individuals are eligible and will receive an additional $600 per week which is funded by the federal government for the next four (4) months which is being funded through July 31, 2020. This payment will be in addition to the weekly benefit that is authorized under state law. The additional payment will be made at the same time but it may be from a different check.
The $600 weekly unemployment compensation supplement is a flat amount that will be distributed to all individuals receiving full unemployment benefits and individuals who would be receiving partial unemployment benefits based upon the employees pay rate.
The Pandemic Emergency Unemployment Compensation Program provides for the extension of state unemployment benefits for an additional 13-weeks after the employee has exhausted all regular state unemployment compensation benefits. In Wisconsin, this means that employees will be eligible for unemployment benefits for a period of 39-weeks. The $600 supplement will run through July 31, 2020, but this extension of benefits will run beyond that date depending upon when the employee applies for unemployment.
The Pandemic Unemployment Assistance Program extends federal unemployment assistance to employees who generally are not eligible for state unemployment benefits, such an independent contractors, self-employed individuals and an employee with a limited work history. These benefits apply if the employee has been diagnosed with the Coronavirus, is experiencing symptoms of the Coronavirus or is unable to work due to a quarantine. The extended benefits would also apply to employees who are providing care to a member of their household who has been diagnosed with the virus or have a child who is unable to attend school because it is closed. The benefit would also apply to employees who were scheduled to begin work but were no longer able to start work or are forced to quit their job because of the Coronavirus. This benefit would also apply to those employees who have their place of employment closed as a direct result of the Coronavirus. All of these extended benefits apply to those individuals who normally would not be eligible for unemployment benefits such as an independent contractor.
The Act eliminates the one-week waiting period that would normally apply to any individual seeking unemployment benefits. The State of Wisconsin is considering legislation to eliminate the one-week waiting period; however, this new federal act may take care of that situation immediately.
The new federal law will provide full funding to states for workshare programs where an employer voluntarily enters into an agreement with the state to prevent the layoff of employees by reducing employee hours. How this provision may apply in Wisconsin is still being reviewed.
There is a provision in the CARES Act that provides an employer with certain relief, in the form of loan forgiveness if an employer seeks to borrow money from the Small Business Administration (“SBA”) to continue the regular salary and benefits for its employees. It is not clear how this Program will be administered or whether it will apply to local government units. Initially, the business will receive a loan from the SBA with a four percent (4%) interest charge, but the business may show that the monies were used to continue salary for employees and then loan forgiveness will be determined as part of the processing of the loan. Employers must keep track of any and all expenses that it incurs in continuing the salary of employees who are not actually working at the time.

The Act also provides a refundable payroll tax credit for those employers whose receipts decrease by more than 50 percent compared to last year or whose business operations were closed or partially closed due to the Coronavirus Crisis. The details of this payroll tax credit will depend upon the specifics of the size of the employer and will require further clarification from the federal government.

The above is designed to give you some specific oversight regarding the potential for unemployment insurance benefits being increased for your employees. In some instances, your employee will be eligible for more revenue from this benefit than the employee would earn if the employee continued working. This is something that must be factored into any consideration regarding a reduction in force or continuation of pay for employees. More information will be sent when it becomes available.

Federal Government Provides Support to Employees of Small Businesses

Fri, 20 Mar 2020 20:56:49 GMT

Authored by: Dean R. Dietrich

Congress and the President have passed legislation that is designed to provide additional support to employees of small businesses and local government units in light of the Coronavirus Pandemic. While many of the details still need to be disclosed and reviewed, it appears that the legislation includes the following:

This new legislation only applies to businesses with less than 500 employees and all local government units;
The legislation must take effect within 15 days of March 18;
The legislation will provide additional leave benefits for affected employees; however, such additional leave benefits will expire on December 31, 2020, unless extended by action of the Federal Government;
These additional leave benefits would not apply to healthcare providers and emergency responders;
Businesses with fewer than 50 employees are exempt from the additional leave requirements if the business can show that the requirements would jeopardize the viability of the business as a going concern;
Employees would be eligible to request up to 80 hours of paid leave for full-time employees and a pro-rated paid leave for part-time employees with the amount of pay limited to $511 per day if the employee is requesting time off due to his/her medical condition and $200 per day if the employee is requesting time off to care for another person with a Coronavirus condition or being required to stay home to care for children in the event of a school closing;
The leave is limited to employees who are unable to work at the business or unable to work from home and the employee is (1) subject to a government quarantine or isolation order; (2) experiencing symptoms waiting for a diagnosis regarding the Coronavirus; or (3) employee has to care for a son or daughter who is at home due to school being closed or childcare being unavailable.
The first 10 days of such leave would be considered unpaid although the employee could use accrued leave.
An employer that has less than 50 employees and does not provide FMLA leave may still be required to provide these particular benefits to any employee working for the business that has worked for a period of 30 days for the business.
This special leave relates to situations where the employee is unable to work due to a Coronavirus-related condition or has to care for a son or daughter if school is closed or childcare is unavailable.

The current Bill provides that a refundable tax credit will be provided to those employers who pay sick leave according to the provisions of this new Bill. How that will be implemented still remains an open question.

We will continue to keep you advised regarding developments on this new family leave benefit.

Coronavirus and Managing Employees

Fri, 20 Mar 2020 20:47:31 GMT

Authored by: Attorney Dean R. Dietrich

I have seen and read numerous articles about the spread of the Coronavirus and what steps can be taken to “flatten out” the spread in order to control the availability of healthcare and hospital services. We have all read about frequent handwashing and social distancing. What we have not read about is what steps can a business take to address employee health and preserve the workplace from shutting down.

The obvious answers are to contract for more cleaning services and make handwashing stations and tissue boxes available throughout the workplace. These are excellent ideas if the business can find the resources needed for these preventive steps. Hospitals have operated for years with the requirement that all employees clean their hands upon entering and exiting a hospital room. It would be nice to implement the same requirement for every room in your business assuming you could find the handwashing stations to allow that to happen.

Just thinking about trying to sanitize the workplace and control employee behavior brings up so many questions. Here are some of the first steps.

Can a business require employees to use hand sanitizers when going in and out of any room?

Employers can make this a work rule if it can provide the resources to allow this to happen. Finding the resources will be a significant challenge. Labor unions may argue that this is an unreasonable work rule but the circumstances of this emergency situation would allow the business to make this a required work rule. Monitoring employee conduct and disciplining employees for not following the rule will be a real challenge. Businesses may require all supervisors to monitor employees leaving a meeting or even require them to hand out a sanitary wipe for each employee to use.

Can a business ask employees what they did on their day off or what they did on the weekend?

We are now talking about questions of privacy for an individual compared to the right of an employer to address safe working conditions. OSHA requires that every business (subject to the rules) must provide a safe workplace for its employees. This would be the rationale for allowing a business to make every employee report on their activities during the weekend or over a holiday or vacation period. Many employers are not subject to the OSHA requirements but the potential for a serious health condition in the workplace will likely allow employers to make more inquiries about the employee conduct during off work hours.

I do not think it is appropriate to ask each employee to provide a diary of their activities during non-work hours. It would be best that an employer develops a checklist that an employee would complete upon return to work and then have the checklist submitted to someone for review. The checklist would address travel out of the country and travel out of the state. The employer would have the right to ask where the employee traveled to in order to assess whether the employee traveled to a location where an outbreak has occurred.

This whole concept seems quite intrusive but the potential for contamination in the workplace would likely support this type of inquiry. Companies with unions should talk to the union in their workplace about this before implementing a specific policy.

Can an employee be disciplined for refusing to complete a survey upon return to work after vacation or holiday or weekend?

Rather than issuing discipline, a business should consider having a team of supervisors that will interview the employee in person to determine if there is any need for concern about the off-work activities of the employee. I realize this represents another commitment of time when the desire is to be more productive with available employees and available work time but again, the requirement to close the entire office or plant would be more devastating.

Can a business require all employees to be tested for a fever when they arrive at work?

This question requires us to give consideration to what constitutes a medical inquiry or medical examination under the Americans with Disabilities Act? Requiring every employee to be tested for a fever at the start of the workday likely qualify as a medical examination under the ADA. Again, the emergency aspects of this pandemic may allow an employer to make this inquiry without being subjected to legal challenge even though some employees will be offended by this activity. I think a better strategy is to remind employees even on a daily basis, that they should not report to work if they are not feeling well, suffering from a fever, or suffering from flu-like symptoms. This type of communication would protect the company from liability if an infected employee comes into the workplace and contaminates a number of other employees. Unfortunately, this virus may result in contamination before an employee even knows that they are sick or feeling sick. I am afraid that there will be some instances where contamination will occur and simply cannot be avoided.

Can an employer require an employee to be tested or sent home if other employees complain about coughing or evidence of sickness experienced by an employee?

This seems to be the area where an employer can step in and address a potential problem in the workplace. We can easily assume that employees will be monitoring the health of other employees in the workplace and looking for examples of an employee exhibiting signs of potential infection such as coughing, and complaints of body aches. If employees complain about the apparent sickness of a co-employee, the best practice is for the employer to be proactive and meet with the suspect employee to observe the condition of the employee and ask questions about the information brought forward by other employees. Again, this would be considered a or medical inquiry under the Americans with Disabilities Act and should not be done in a way that targets an employee that may have a disabling condition. On the other hand, the potential for infection in the workplace will give employers some flexibility to make these inquiries as long as the employer documents the information provided from co-employees and acts reasonably under the circumstances. This means that the employer does not target particular employees based upon race or physical conditions but rather makes an inquiry based upon information provided to the employer that provides a reasonable basis for such inquiry.

The measuring tool for determining whether or not to make an inquiry of an employee is the seriousness of the information brought forward by other employees and the reasonableness of an inquiry based upon the concern about the working conditions in the office or plant. In other words, the inquiry should be based upon work-related concerns instead of based upon hysteria or unreasonable expectations about the employee’s conduct.

This is clearly a challenging area but employers need to act reasonably in making an inquiry as to whether or not someone is exhibiting physical behaviors that could be related to the Coronavirus contamination.

Can an employer require an employee to be tested for the Coronavirus?

An arbitrary decision to have every employee tested for the Coronavirus seems to be beyond the scope of the reasonableness standard that would apply to making a medical inquiry of the condition of an employee. This may not be a logical option simply because of the lack of resources at this time. Also, if the employer is making this a requirement for an employee to

come to work, a very good argument can be made that this is an expense that must be paid by the company like a fitness-for-duty examination that is often used when an employee suffers from a significant medical condition. I do not recommend this policy be instituted by a business and rather recommend that some type of testing only be required if an employee is exhibiting the characteristics of the Coronavirus condition. This, of course, requires the employer to have some type of reasonable verification that the employee is suffering from an illness that could be linked to the Coronavirus.

Employers are faced with very challenging employment considerations as we work through this pandemic. It does not appear that we will be able to do regular or routine testing of employees for the virus for a longtime and maybe never. Employers need to act reasonably and use the standard of work-related inquiries when dealing with potential situations where an employee is exhibiting signs of suffering from the Coronavirus.

Finding A Detour In Its Travels: The US Supreme Court's Decision In "Masterpiece Cakeshop"

Fri, 29 Jun 2018 19:30:49 GMT

By: Attorney Brian G. Formella

Anderson, O’Brien, Bertz, Skrenes & Golla, LLP

The civil liberties of gay couples and the religious rights of a Colorado business owner were recently on a collision course. Then, on June 4, 2018, the U.S. Supreme Court found a detour to avoid the collision, at least for now.

The Court held that, in some instances, a balance must be struck between protecting gay persons in the exercise of their civil rights and the rights of a business owner to express his religious-based objection to gay marriage. The case is known as the Masterpiece Cakeshop case.

Why is the Masterpiece Cakeshop case of interest to human resources professionals? Because the same policy intersection-- or “collision course,” depending on your perspective-- could easily arise in an employment context in Wisconsin. Therefore, H.R. professionals will enhance their value to their organization if they are generally aware of court rulings like Masterpice Cakeshop.

In Masterpiece Cakeshop, a Colorado bakery was owned and operated by an expert baker who professed certain religious beliefs about gay marriage. The baker told a same-sex couple that he would not create a cake for their wedding celebration because of his religious opposition to same-sex marriages - - marriages that Colorado did not then recognize - - but that he would sell them other baked goods, such as birthday cakes.

The couple filed a charge with the Colorado Civil Rights Commission, based on a Colorado law that prohibits discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services . . . to the public.” Lower courts in the State of Colorado rejected the baker’s First Amendment claim that requiring him to create a cake for a same-sex couple for their wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed and which would, he maintained, violate his right to the free exercise of religion.

In its decision, the U.S. Supreme Court recognized the intersection between protecting gay persons in the exercise of their civil rights, as well as religious and philosophical objections to gay marriage that may in some instances be a protected form of expression as well.

So how did the U.S. Supreme Court resolve the two basic rights, which appeared to be on a collision course? To continue with a travel metaphor, the Supreme Court took a detour. It did not decide the issue head-on in this case. Rather, it found that the Colorado commission that considered the matter to be impermissibly hostile to the sincerely held religious beliefs of the baker in this instance. Such hostility meant that the baker was not afforded his due process rights in this instance. The majority of the Supreme Court held that the Colorado commission’s treatment of the baker violated Colorado’s duty under the First Amendment to not have laws or regulations that express an overt hostility to a religion or a religious viewpoint. As a result, the majority of the Supreme Court reversed the judgment of the Colorado appellate court, meaning that the case will be returned to the Colorado legal system for consideration of the matter, but without the noted hostility that the majority noted.

What is the lesson for Wisconsin employers and HR professionals? First, Wisconsin has a law similar to the Colorado law that makes it unlawful to give preferential treatment to some classes of persons in providing services or facilities in any public place of accommodation or amusement because of sex, race, color, creed, sexual orientation, national origin or ancestry. § 106.52(3), Wis. Stats., Public places of accommodation or amusement. A person who feels that he or she has been a victim of unlawful treatment under the law may file a claim with the Equal Rights Division of the Wisconsin Department of Workforce Development, the same entity that considers violations under the Wisconsin Fair Employment Act.

Second, certain Wisconsin employers may have the constitutional protection of the Free Exercise Clause of the First Amendment to the U.S. Constitution. That clause states that “Congress shall make no law . . . prohibiting the free exercise” of religion.

CONCLUSION

The rights and remedies available to everyone under state and federal law--whether state fair employment or public accommodation laws, or Title VII, the Americans with Disabilities Act, or similar federal laws--often create policy conflicts for employees, employers and businesses in general. The wise HR professional will stay alert to the intersection and potential conflicts that will necessarily arise in the workplace and in the marketplace. For now, the resolution to the underlying policy conflict in Masterpiece Cakeshop between public accommodation rights for gay couples and the religious expression rights of small businesses will need to be addressed another day.

By: Attorney Brian Formella
Stevens Point Area Human Resources Association
715.572.1341
bgf@andlaw.com

Endless Winter? Endless Disability Accommodations?

Wed, 09 May 2018 19:21:20 GMT

Until recently, it seemed that winter would last forever in Central Wisconsin. Similarly, it can seem that there is no end in sight concerning an employer’s legal obligation to provide reasonable accommodations to a disabled employee.

But in March 2018, the U.S. Supreme Court decided it will not review whether a former operations manager at a Wisconsin manufacturer of retail displays should have been allowed to take two to three months off for recovery from back surgery, following exhaustion of his FMLA leave. The unpaid leave would have been in addition to 12 weeks of leave that the employee took prior to back surgery. The Supreme Court’s decision not to hear the case leaves in place a September 2017 ruling by the 7^th Circuit Court of Appeals (which includes Wisconsin) that a Wisconsin employer did not violate the Americans with Disabilities Act when it refused to let the employee take the additional leave beyond FMLA leave.

Just how long an employee should be allowed to remain on leave to recover from a disabling condition that prevents him from performing his job is a question that has plagued employers nationwide. The issue frequently requires employers to navigate between the Americans with Disabilities Act and the FMLA. The point for Wisconsin employers is that federal law does not require endless leave in all situations. However, Wisconsin employers should also consider the requirements of the Wisconsin Fair Employment Act in considering reasonable accommodation requests. The WFEA may be is interpreted more liberally than the ADA when it comes to leave requests as a reasonable accommodation.

Wisconsin winters are not endless; they only seem that way. Similarly, an employer’s need to reasonably accommodate an employee’s disability with additional leave is not endless in all situations. The applicable case is Severson v. Heartland Woodcraft, Inc.

By: Attorney Brian Formella
Stevens Point Area Human Resources Association
715.572.1341
bgf@andlaw.com

Harassment in the headlines: Employers in the headlights?

Mon, 26 Feb 2018 20:34:16 GMT

It is hard to ignore the daily dose of headlines that assert new allegations of sexual harassment or abuse in American society.

While the problem of sexual harassment may be analyzed on many levels -- personal, societal, historical, cultural, to name a few -- sound legal analysis of the topic must not be overlooked by employers and employees.

When sex harassment occurs in the workplace, the conduct is likely addressed by Wisconsin and federal law. Some forms of harassment may suggest criminal repercussions, although many forms of sexual harassment in the workplace may not be considered a crime, depending on circumstances.

While all bad behavior in the workplace is inappropriate, not all inappropriate behavior may be contrary to state and federal laws. Inappropriate conduct may not merely be illegal, it may be bad for business, including lowering employee morale. The Equal Employment Opportunity Commission (EEOC) states that “workplace harassment affects all workers, and its true cost includes decreased productivity, increased turnover, and reputational harm,” all of which is a drag on productivity. (Select Task Force on the Study of Harassment in the Workplace; June 2016.)

Given the wide range of sexually inappropriate conduct, it behooves employers and employees to know the law. Sex harassment is a form of unlawful discrimination based on sex. Wisconsin defines discrimination because of sex to include implicitly or explicitly making or permitting acquiescence and/or submission to sexual harassment a term or condition of employment. It is unlawful for an employer to permit conduct that has “the purpose or effect of substantially interfering with an employee’s work performance or creating an intimidating, hostile or offensive work environment.” Substantial interference with an employee’s work performance or creation of an intimidating, hostile or offensive work environment may be established when the conduct is such that a reasonable person under the same circumstances as the employee would consider the conduct to be sufficiently severe or pervasive to interfere substantially with the person’s work performance or to create an intimidating, hostile or offensive work environment. Usually the offensive conduct must be unwelcome for the conduct to be deemed unlawful under Wisconsin law.

Federal law is similar to Wisconsin law. Wisconsin law applies to any employer with one or more employees; federal law applies to employers with 15 or more employees.

What should employers do to protect themselves against conduct by employees that may lead to harassment complaints?

1. Review your harassment policy to make sure it is up-to-date and has been recently communicated to your employees.
2. Conduct harassment training for management and nonmanagement employees if you have not done so within the past year. The EEOC recommends that the training be live and interactive, if possible, or computer-based and interactive if live training is not possible.
3. If applicable, conduct appropriate harassment training for your organization’s board of directors.
4. Analyze whether your organization has been unintentionally tolerating or ignoring an employee who has a reputation for engaging in inappropriate behavior.
5. If the allegations of inappropriate behavior or harassment in your organization are widespread or involve someone high up in the organization, consider outside legal counsel to assist with your investigation. Outside counsel will be able to help you analyze legally sound investigation techniques and what, if any, remedial action should be taken.

In conclusion, it is important to recognize that bad behavior is bad for business, whether or not the conduct is against the law. Consult with your legal advisor to review whether your harassment policies are up-to-date and whether key employees in your company should have moral turpitude clauses added to their employment agreements (when there are such employment agreements) to assist the employer in terminating employees who are behaving poorly, even if their conduct does not rise to the level of unlawful harassment under state or federal law. Seek legal advice promptly if you suspect behavior that may violate state or federal harassment laws.

By: Attorney Brian Formella
Stevens Point Area Human Resources Association
715.572.1341
bgf@andlaw.com