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.

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.

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.

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

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.

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.

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.

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.

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

   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