Author Archives: Mary Gemeinhardt

Wisconsin Manufacturers & Commerce Reports Wisconsin Governor to Release Names of Companies with Positive COVID Cases

By: Sally A. Piefer

Yesterday afternoon, the Wisconsin Manufacturers & Commerce (WMC) notified its members that Governor Evers plans to release the names of more than 1,000 businesses who have had 2 or more employees test positive for COVID-19. The release is reportedly scheduled to occur tomorrow, Friday, October 2, 2020.

During the summer, Governor Evers said publicly that his administration would not release business names where employees tested positive for COVID because it was “information that’s not public.” In addition, during a September press event, Governor Evers is reported to have acknowledged that releasing the information could pose privacy issues.

The WMC has been regularly urging the Governor to keep this information confidential. WMC retained legal counsel who wrote a letter to the Governor in July 2020 describing the legal implications of releasing the names of businesses who had COVID-positive cases among its employee ranks. WMC says that it reached out again to the Governor’s office yesterday, but received no response before it alerted its membership of the impending information release.

We will continue to provide updated information as it becomes available.

If you have questions, please contact Sally Piefer or your normal Lindner & Marsack attorney.

DOL PROVIDES CLARIFICATION ON FFCRA PAID LEAVE PROVISIONS

By: Samantha J. Wood and Sally Piefer

Last month, the federal district court for the Southern District of New York struck down several regulations issued by the Department of Labor (DOL) regarding the Families First Coronavirus Response Act (FFCRA) and its two major provisions, the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLA). More information regarding this decision can be found here. Since this decision was issued, it remained unclear how the decision would impact employers outside of the Southern District of New York.

Thankfully, last week the DOL provided employers with some guidance by revising its FFCRA regulations and clarifying the following:

Work Availability

The FFCRA provides paid leave to employees who are “unable to work (or telework)” because of a need to care for a child. The DOL’s earlier regulations indicated that employees were not entitled to the paid leave if the employer “does not have work” for the employee to perform.

The DOL has reaffirmed that an employee may take FFCRA leave only to the extent that a qualifying reason for such leave is the “but-for” cause of his or her inability to work. In other words, an employee is only entitled to FFCRA leave when the employer has work available for the employee to perform but s/he cannot perform it “because of” a qualifying reason.  If there is no work for an individual to perform due to circumstances other than a qualifying reason for leave, such as a temporary or permanent worksite closure, the employee is not eligible for FFCRA leave. However, employers may not make work unavailable in an effort to deny FFCRA leave; indeed, altering an employee’s schedule in an adverse manner because the employee requests or takes FFCRA leave would likely constitute impermissible retaliation.

Intermittent Leave

The DOL has also reaffirmed its earlier regulations regarding intermittent leave.  Specifically, employees are permitted to take intermittent leave under the EFMLA or the EPSLA only if the employer consents to the use of such intermittent leave.

Health Care Provider Exception

In an effort to prevent disruptions to the health care system’s capacity to respond to COVID-19, the FFCRA also allows employers to exclude from coverage “health care providers” or “emergency responders.”

The DOL’s earlier regulations broadly defined a “health care provider” to include “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity” including “any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.” In addition, the regulations further expanded the definition to include the following: (1) any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility; (2) anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments; and (3) any individual that the highest official of a State or territory, including the District of Columbia, determines is a health care provider necessary for that State’s or territory’s or the District of Columbia’s response to COVID-19.

In light of the federal district court’s challenge to the broad definition, the DOL has narrowed the definition of “health care provider,” to include (1) employees who meet the definition of “health care provider” under the Family and Medical Leave Act regulations (physicians and others who make medical diagnoses); or (2) those who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provisions of patient care, which, if not provided, would adversely impact patient care. Employers who originally exempted employees under the broad health care provider definition will need to re-evaluate whether they can continue to exclude their employees from coverage.

Advance Notice of Need for Leave

The FFCRA permits employers to require employees to follow reasonable notice procedures to receive FFCRA leave. The DOL’s earlier regulations provided that “prior to” taking leave, the employee must provide the employer the reason for leave, the duration of the leave, and if applicable the authorized person who ordered isolation or quarantine.

The DOL has revised this requirement to require employees taking FFCRA leave to provide their employers with notice of leave as soon as practicable, when the necessity for such leave is foreseeable. While this will generally mean that employees are required to provide notice before taking leave, there may be some instances where leave is not foreseeable and prior notice is not practicable.

Additionally, the DOL clarified that the documentation required from the employee for FFCRA leave also need not be given “prior to” taking FFCRA leave, but is only required as soon as practicable, which in most cases will be when the employee provides notice of the need for leave.

Conclusion

In light of the DOL’s revised regulations, employers must modify their practices to ensure compliance with the narrower health care provider exception and the more flexible notice and documentation requirements.

If you have any questions about these new regulations, please contact your Lindner & Marsack attorney or the Firm at (414) 273-3910 to seek counsel.

WI Work Comp Forum – October 8, 2020

The Wisconsin Worker’s Compensation Forum (WIWC) invites you to attend an all-virtual, one-day educational event on October 8, 2020.  You can expect the same quality speakers and topics as you would normally see during our annual conference, but now you can enjoy them from the comfort of your own home!  Additionally, we are offering opportunities for giveaways and social interaction with our sponsors.  With panel discussions and sessions on a variety of current worker’s compensation topics, this is a seminar you won’t want to miss!

Register now, as the first 300 people to do so will receive a goodie bag filled with swag from some of our sponsors.  Spots are filling up fast so register today!

General Attendees – $45

Attorneys (with included CLEs) – $80

Lindner & Marsack is proud to be a founding member of the Wisconsin Worker’s Compensation Forum where our own Chelsie Springstead serves as the current President.

Take a Break from Covid: Back to Basics (Part 2 of 3)

Register Now for the Upcoming Complimentary Webinar on September 22, 2020

The National Workers’ Compensation Defense Network (NWCDN) invites you to attend a webinar on September 22, 2020 at 10:00 am (CST). NWCDN lawyers from four adjacent midwestern states, Minnesota, Michigan, Wisconsin and Iowa are partnering to present a three part series of webinars entitled “Back to Basics.” Attorney Chelsie Springstead from our office will be among the presenters in this second of three webinars.  Look for part three coming up later this year.

With most adjusters handling claims from multiple jurisdictions, this series is a must! The webinar will focus on compensability of claims, factors of entitlement, types of work injuries, causation issues, and defenses. These topics will be covered by utilization of factual hypotheticals which will highlight similarities and differences between each of the four states.

Lindner & Marsack is proud to be a founding member of the National Workers’ Compensation Defense Network (NWCDN) where our own Doug Feldman serves as the current Treasurer.  In an effort to provide up to date legal information addressing workers’ compensation law across the nation in this ever-changing environment, NWCDN teamed up with WorkersCompensation.com to offer complimentary webinars.

Registration is complimentary.  Click here now to reserve your spot!

Federal Court Throws Employers a Curve Ball on the FFCRA Paid Leave Provisions

By Sally Piefer  

A decision from a federal district court in New York may very well have changed several key regulations implementing the Families First Coronavirus Response Act (FFCRA). This decision could impact many employers across the country, right as schools are determining whether they will hold in-person class or whether they will remain virtual for the foreseeable future. The uncertainty for employers and employees continues.

By way of background, on March 18, 2020, President Trump signed the FFCRA into law. Two key provisions affect employers – the Emergency Family & Medical Leave Act (EFMLA) and the Emergency Paid Sick Leave Act (EPSLA). Together these Acts required employers with fewer than 500 employees to provide certain paid leave to employees. The EFMLA provided employees with up to 12 weeks of paid protected leave if unable to work because a dependent child’s school or day care was closed or where the child’s caregiver was unavailable due to COVID-19. The EPSLA also provided, among other things, up to two weeks of paid leave for a parent to care for a dependent child whose school day care is closed or whose caregiver was unavailable due to COVID-19. In April, the Department of Labor (DOL) released regulations applicable to the FFCRA.

The State of New York challenged several of the regulations, alleging that the DOL exceeded its authority under the Administrative Procedure Act. The district court agreed, striking down the following provisions.

Work Availability 

The EFMLA and EPSLA both provide paid leave to employees who are “unable to work (or telework)” because of a need to care for a child. The DOL’s final regulations indicated that employees were not entitled to the paid leave if the employer “does not have work” for the employee to perform. This provision was interpreted to mean that if a business had closed due to COVID or an employee was furloughed, he or she was not entitled to paid leave because the employer did not have work.

The district court concluded that the DOL’s regulations were inconsistent with the text of the law. First, the district court concluded that the DOL’s regulations treated the six qualifying reasons for EPLSA leave differently, and DOL failed to explain this anomaly. The court further concluded that the differential treatment was contrary to the language of the legislation. The district court concluded that the DOL’s regulation impermissibly narrowed the scope of the legislation. Accordingly, the district court determined that an employee is eligible for paid leave regardless of whether the employer has work available for the employee.

Health Care Provider Exception 

Both provisions of the FFCRA also allowed employers to exclude from coverage “health care providers.” The DOL’s definition of a “health care provider” that may be exempted was broadly defined to include “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity” including “any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.”

In DOL’s Q&A, the broadly-worded definition includes:

  1. Any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility;
  2. Anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments; and
  3. Any individual that the highest official of a State or territory, including the District of Columbia, determines is a health care provider necessary for that State’s or territory’s or the District of Columbia’s response to COVID-19.

The State of New York challenged this provision because the DOL’s determination of whether an employee was excluded was based on what the employer’s business was, and not on the job functions of the employee. Again, the district court agreed, finding the DOL’s expansive definition impermissible.

Intermittent Leave 

Under the DOL’s regulations, employees were permitted to take intermittent leave for EFMLA with the consent of the employer. The regulations also allowed employees to take intermittent leave for some EPSL provisions—again with the consent of the employer.

The State of New York challenged the intermittent leave rules because Congress never mentioned intermittent leave in the legislation, and the constraints on intermittent leave in the DOL’s rules were inconsistent with the underlying intent of the FFCRA. The district court struck down the intermittent leave provisions because they applied only in certain conditions—and only if agreed to by the employer.

Advance Notice of Need for Leave 

The final challenge to the DOL’s regulations was to the requirement that prior to taking leave, the employee must provide the employer the reason for leave, the duration of the leave, and if applicable the authorized person who ordered isolation or quarantine. The State of New York argued that the advance notice provisions were inconsistent with the legislation. For example, the text of the EFMLA only required advance notice of leave “as is practicable.” Similarly, the text of the EPSLA allowed an employer to require employees to follow reasonable notice procedures.

The district court agreed and held that the DOL’s regulations required different and more stringent notice requirements, and that the regulation could not stand because it was inconsistent with the statute’s unambiguous notice provisions.

Employer Take-Aways

At this point it remains a bit unclear how this decision will impact employers outside the area covered by the Southern District of New York. Generally, decisions from a district court create precedent in that district—but not in other parts of the county. If the decision is strictly limited to the Southern District of New York, it could, however, pave the way for similar lawsuits challenging the DOL regulations throughout the country. A court in Wisconsin need not follow a New York court’s lead, so there is uncertainty as to whether other courts will reach the same decision as the Southern District of New York.

The DOL has not yet indicated whether it will challenge the decision, and if it does, whether it will seek a stay of the district court’s decision pending resolution in the Court of Appeals. It is also possible that DOL could amend the regulations or modify its guidance. Finally, if the legislature believes the district court got it wrong, it is possible that the legislature could amend the FFCRA to specifically overrule the district court’s decision.

What is clear at this point is that the decision leaves employers across the country (other than those in the Southern District of New York) in a state of uncertainty. Employers will need to determine whether they will follow the district court’s decision or whether they will continue to follow the DOL’s regulations.

We will continue to monitor these important issues. Should you have any specific questions that are not addressed, please contact your Lindner & Marsack attorney or the Firm at (414) 273-3910 to seek counsel.

Take a Break from Covid: Back to Basics (Part 1 of 3)

 

Register Now for the Upcoming Complimentary Webinar on August 13, 2020

 

The National Workers’ Compensation Defense Network (NWCDN) invites you to attend a webinar on August 13, 2020 at 10:00 am (CST). NWCDN lawyers from four adjacent midwestern states, Minnesota, Michigan, Wisconsin and Iowa are partnering to present a three part series of webinars entitled “Back to Basics.” Attorney Melissa Stone from our office will be among the presenters in this first part of three webinars.  Look for parts two and three coming up in September and October.

With most adjusters handling claims from multiple jurisdictions, this series is a must. The first webinar will focus on the front end of a claim with tips on forms, penalties, investigation, IMEs, surveillance, social media and more. The speakers will compare and contrast the differences and similarities in these states.

Lindner & Marsack is proud to be a founding member of the National Workers’ Compensation Defense Network (NWCDN) where our own Doug Feldman serves as the current Treasurer.  In an effort to provide up to date legal information addressing workers’ compensation law across the nation in this ever-changing environment, NWCDN teamed up with WorkersCompensation.com to offer complimentary webinars.

Registration is complimentary.  Click here now to reserve your spot!

 

U.S. SUPREME COURT RULES THAT TITLE VII PROTECTS LGBTQ WORKERS FROM DISCRIMINATION

June 15, 2020

By:  Samantha J. Wood

Today, the U.S. Supreme ruled that Title VII of the Civil Rights Act bars discrimination on the basis of gender identity and sexual orientation.

Title VII makes it “unlawful…for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2(a)(1).  An employer, therefore, violates Title VII when it intentionally terminates an individual based, in part, on his or her sex.

In Bostock v. Clayton County, No. 17-1618 (June 15, 2020), which involved three consolidated cases, three employees sued their former employers, alleging sex discrimination under Title VII, after they were terminated on the basis of their homosexual or transgender identity.  The employers did not dispute that they fired the employees as a result of their homosexual or transgender identity.  Rather, they argued that Title VII does not extend protection to the employees on such basis.

The Supreme Court, however, disagreed, holding that an employer who fires (or otherwise discriminates against) an individual for being homosexual or transgender necessarily and intentionally discriminates against that individual, in part, because of sex.  “Sex plays a necessary and undisguisable role in the decision,” which is exactly what Title VII forbids. Accordingly, an employer who intentionally treats individuals differently because of their homosexual or transgender identity, penalizes those individuals on the basis of their sex in violation of Title VII.

While the Seventh Circuit (covering Wisconsin, Illinois, and Indiana) already extended Title VII protection on this basis (see here), this case serves as a reminder to employers that their policies and practices must provide protections to LGBTQ employees.

If you have questions about this material, please contact Samantha J. Wood by email at swood@lindner-marsack.com, or any other attorney you have been working with here at Lindner & Marsack, S.C.

Establishing a “New Normal” During Covid-19

Register Now for the Upcoming Complimentary Webinar on June 1, 2020.

Lindner & Marsack is proud to be a founding member of the National Workers’ Compensation Defense Network (NWCDN) where our own Doug Feldman serves as the current Treasurer.  In an effort to provide up to date legal information addressing workers’ compensation law across the nation in this ever-changing environment, NWCDN teamed up with WorkersCompensation.com to offer complimentary webinars.

 Please join us for the upcoming webinar on June 1, 2020, at 12PM EST/11AM CST where Attorney Chelsie Springstead from our office, along with a panel of lawyers across the nation, address issues that may arise while we all try to establish a “new normal” during the Covid-19 pandemic. 

Registration is complimentary.  Click on the link below now to reserve your spot!

https://www.compevent.com/webinars/index.php?event_web_access_code=34685db49a382a70c0e11a8e3dac71fa

 

 

Wisconsin’s COVID-19 Response Bill Signed By Governor Evers

By: Daniel Finerty and Melissa Stone

After Assembly Bill 1038 passed on April 14, 2020 and was quickly taken up and passed by the State Senate the following day, Governor Evers took swift action to sign the legislation, known as the COVID-19 Response Bill. 2019 Wisconsin Act 185 (Act) became effective April 16, 2020. The bipartisan bill was passed to ensure Wisconsin is eligible for the federal CARES Act Pandemic Unemployment Assistance by making necessary changes to Wisconsin’s Unemployment Insurance Law, Worker’s Compensation Act and others changes to Wisconsin law.

Unemployment Insurance

One-Week Waiting Period

Historically, an employee filing for unemployment insurance benefits (UI) needed to wait one week after becoming eligible to receive UI benefits before the benefits could be received for a week of unemployment.

However, the Act suspends the application of the one-week waiting period for benefit years that began after March 12, 2020, and before February 7, 2021. See 2019 WI Act 185, Section 38 (creating Wis. Stat. § 108.04(3)(b)). The Act also directs the Department of Workforce Development (DWD) to seek the maximum amount of federal reimbursement for benefits that are, during this time period, payable for the first week of a claimant’s benefit year as a result of the suspension.

Initial Claims

The Act requires DWD to determine whether a claim for UI or a work-share plan is related to the COVID-19 public health emergency declared by the Governor on March 12, 2020. See 2019 WI Act 185, Section 50 (creating Wis. Stat. § 108.07(5)(bm)). If a claim is related to the public health emergency, the Act provides that the regular benefits for that claim for weeks occurring after that date, and before December 31, 2020, will not be charged to an employer’s unemployment insurance reserve account, as is normally the case provided the employer does not fail to “timely and adequately provide any information required by the Department.” As a result, it is critical for employers to respond to UI requests for information to document the claim is related to the public health emergency in order to ensure the financial health of the employer’s UI reserve account.

While there are a number of exceptions, for employers that pay the quarterly payroll taxes, UI benefit charges related to the public health emergency will be charged to the balancing account of the unemployment reserve fund. This fund is the pooled account financed by all employers that pay contributions and is used to pay benefits that are not chargeable to any employer’s account. However, in the case of employers that instead reimburse DWD for benefits directly, the UI benefits are to be paid in the manner specified under current law for certain other circumstances involving benefits chargeable to reimbursable employers. The exceptions to this charging rule include that it only applies those benefits paid through the state UI program; it does not apply to any federal share of CARES Act extended benefits; and it does not apply to work-share program benefits and other exceptions.

The Act also directs the DWD Secretary, to the extent permitted under federal law, to seek advances to the state’s unemployment reserve fund from the federal government, to ensure that all UI tax rates can remain the same through the end of the year.

Changes to Work-Share Program

Under prior law, an employer could utilize a “work-share” structure to keep workers employed who would otherwise be laid off. The program used partial unemployment benefits combined with continued, but reduced, work hours to insulate employees from lay off.

The Act creates a more accessible, modified workshare program for employers to access their unemployment insurance reserve account instead of laying off employees. The Act outlines the following changes to work share plans submitted between April 16, 2020, the Act’s effective date, and December 31, 2020, which will not have to follow the traditional elements of a Work Share Program outlined in our prior E-Alert:

  • Work-share plans must cover at least 2 positions that are filled on the effective date of the work-share program, rather than at least the greater of 20 positions or 10 percent of employees in a work unit under prior law. See 2019 WI Act 185, Section 48 (creating Stat. § 108.062(20)(b)).
  • The maximum reduction in working hours under a work-share program may be either 60 percent of the normal hours per week of the employees included under a work-share plan, or the maximum percent reduction of normal hours per week permissible by federal law, whichever is greater, rather than the 50-percent limitation on reduction of hours under prior law. See 2019 WI Act 185, Section 48 (creating Stat. § 108.062(20)(f)).
  • Work-share plans may cover any employees of the employer instead of being limited to a particular work unit of the employer as provided in the prior law. See 2019 WI Act 185, Sections 41, 48 (amending Stat. § 108.062(1)(b); creating Wis. Stat. § 108.062(20)).
  • Under prior law, if in any week there were fewer than 20 employees included in a work−share program of any employer, the program would terminates on the 2nd Sunday following the end of that week; however, that provision no longer applied to a work− share program that has been approved or modified under the Act. See 2019 WI Act 185, Sections 46 (amending Stat. § 108.062(15)).
  • Employers with an existing work-share plan that was approved by the DWD prior to April 16, 2020 are allowed to submit a plan modification under the modified program requirements. See 2019 WI Act 185, Sections 43m (creating Stat. § 108.062(3r)).

Employers that have existing work-share plans may want to consider requesting a modification to comply with the new requirements, which permit greater flexibility in terms of reductions of hours, can include a smaller number of employees, and are not limited to a particular work unit. Employers looking to apply for a work-share program should ensure their application is in compliance with these changes.

Compliance with Requests for Personnel Files

With regard to any request for an employee’s personnel file, received on or after March 12, 2020, the date of the Governor’s original Emergency Declaration, an employer is not required to provide an employee’s personnel records within 7 working days after an employee makes a request to inspect his or her personnel records, and an employer is not required to provide the inspection at a location reasonably near the employee’s place of employment during normal working hours. See 2019 WI Act 185, Section 35 (creating Wis. Stat. § 103.13 (2m)).

In light of this likely temporary amendment to the personnel record requirement, employers can provide copies of personnel files by mail to ensure social distancing in a reasonable period of time and may charge an employee reasonable costs for copying the file, which may not exceed the actual cost of reproduction.

Worker’s Compensation

Under prior Wisconsin worker’s compensation law, in order for a COVID-19 claim to be found compensable, medical and factual evidence must be provided that documents by a “preponderance of the evidence” that the employee contracted the COVID-19 virus while at work, as opposed to some other community source. This means that there are facts strong enough to prove the probability that the virus, parasite or bacteria claims arose out of employment.  The compensability of COVID-19 cases should be decided on a case-by-case basis following an investigation of the relevant factual background. In the absence of this preponderance of evidence, it cannot be concluded that that the employee sustained an injury while performing services arising out of or incidental to employment, and the claim may be denied.

However, the Act created new conditions of liability for COVID-19 claims as it relates to “First Responders” only. See 2019 WI Act 185, Section 33 (creating Wis. Stat. § 102.03(6)). That section provides the following changes:

  • “First Responders” are defined as an employee or volunteer employee that provides fire-fighting, law enforcement, or medical treatment of COVID-19, who have regular, direct contact with, or are regularly in close proximity to, patients or members of the public requiring emergency services within the scope of the “First Responders” work for the employer. See 2019 Act 185, Section 33 (creating Stat. § 102.03 (6)(a)).
  • If the “First Responder” is exposed to persons with confirmed cases of COVID-19 in the course of employment, there is now a rebuttable presumption in favor of the employee that the COVID-19 injury is caused by the employment and is work-related. See 2019 Act 185, Section 33 (creating Stat. § 102.03 (6)(b)).
  • The “First Responders” injury must have occurred between March 12, 2020 and ending 30 days after termination of Governor Evers’ Public Health Emergency Order, which, as a result of an subsequent Order, is now set to continue past from April 24, 2020 until May 26, 2020, or until a superseding order is issued. See 2019 Act 185, Section 33 (creating Stat. § 102.03 (6)(b)).
  • The “First Responders” injury must be supported by a positive COVID-19 test or by a specific diagnosis by a physician. See 2019 Act 185, Section 33 (creating Stat. § 102.03 (6)(c)).
  • This is a rebuttable presumption. If an employer or insurer has credible evidence that the “First Responder” was exposed to COVID-19 outside of the work for the employer, the compensability of the claim may be challenged. See 2019 Act 185, Section 33 (creating Stat. § 102.03 (6)(d)).

This change to Wisconsin worker’s compensation law only applies to “First Responders,” as defined in the Act. It does not apply to all employees classified as “essential” during the crisis. The Act creates a presumption that whenever a “first responder” on the front line of the State’s COVID-19 response gets COVID-19, the injury is work-related. The burden is then on the employer and insurer to present credible factual evidence to rebut the new statutory presumption in order to deny liability for the claim.

The Act contained a second amendment to the Worker’s Compensation Act. Under existing worker’s compensation law, there is an additional benefit of up to $13,000.00 available to an employee that sustains injury as a result of exposure in the workplace over a period of time to toxic or hazardous substances or conditions. See Wis. Stat. § 102.565. Under the Act, this additional benefit does not apply to a “First Responder” who claims presumed injury under the other changes outlined by the Act. See 2019 Act 185, Section 33 (creating Wis. Stat. § 102.565 (6)).

For more information about these changes, please contact your Lindner & Marsack, S.C. attorney at (414) 273-3910.

Work-Share Programs – A Viable Option For Employers Reducing Employee Hours Due to COVID-19

By: Daniel Finerty and Laurie Petersen

A Work‐Share Program (“program” or “plan”) is a benefit plan for which Wisconsin businesses can apply to the Unemployment Insurance Division of the Department of Workforce Development (“UI Division” or “DWD”). The program is designed to help both Wisconsin businesses and their employees by allowing businesses to tap the funds in their unemployment insurance reserve to offset wage reductions and keep employees working.

Instead of laying off workers, a qualified employer, after approval of its program application, can plan to reduce work hours across a work unit. After approval, work hour reductions can be implemented when the program becomes effective. The plan’s effective date is the Sunday of the 2nd week after approval or any Sunday after that day specified in the plan, whichever is later, and generally last for a 6-month period. Workers whose hours are uniformly reduced under the plan can receive unemployment benefits that are pro‐rated for the partial work reduction from the employer’s unemployment insurance account. As a result, a plan, once approved, can help employers avoid layoffs, mitigate the unemployment insurance reserve account impact of more dramatic workforce reductions, allow workers to remain employed and ensure employers can retain trained staff during these times of reduced business activity caused by COVID-19.

More relevant for employers may be the fact that employees working under an approved plan may be eligible to receive the $600/week recently included in the CARES Act. Even if the plan includes more than 32 hours of work or more than $500 in wages per week (both facts that would normally make an employee ineligible for unemployment insurance benefits), the employees may still be entitled to unemployment insurance benefits through an approved program. Workers eligible for at least $1 in unemployment benefits as a result of participation in an approved program, or otherwise, will likely also be eligible for the $600/week federal payment. Just this week, the Department of Workforce Development revealed that it has entered into an agreement to receive this funding from the U.S. Department of Labor. DWD expects its system modifications to be in place and able to accept the CARES Act claims by April 21, 2020, and expects to have the first checks issued around April 28, 2020. These dates are subject to change based on circumstances that arise.

A program requires an employer to apply to the UI Division, as outlined in Wis. Stat. § 108.062. To do so, the employer must certify the following conditions to meet the required elements of a work-share program, or plan. The applicant employer must:

  • Specify the work unit in which the plan will be implemented, including the affected positions, and the names of the employees filling those positions on the date of submittal. “Work unit” is defined as an operational unit of employees designated by an employer for purposes of a work-share program, which may include more than one work site.
  • Provide for inclusion of at least 10 percent of the employees in the affected work unit on the date of submittal and for initial coverage under the plan of at least 20 positions that are filled on the effective date of the work-share program. In this regard, the plan must include the greater of 20 positions or 10% of the employees in a work unit. Here are some examples:
  • If there are 20 employees in a work unit, the plan must include all 20 employees in unit;
  • If 100 employees in a work unit; the plan must include at least 20 employees in unit; and,
  • If 1000 employees in a work unit; the plan must include at least 100 employees in unit (10%).
  • Specify the period or periods when the plan will be in effect, which may not exceed a total of 6 months in any 5-year period within the same work unit.
  • Provide for apportionment of reduced working hours equitably among employees in the work-share program.
  • Exclude participation by employees who are employed on a seasonal, temporary, or intermittent basis.
  • Apply only to employees who have been engaged in employment with the employer for a period of at least 3 months on the effective date of the work-share program and who are regularly employed by the employer in that employment. A work-share program becomes effective on the later of the Sunday of the second week beginning after approval of a work-share plan or any Sunday after the effective date specified in the plan.
  • Specify the normal average hours per week worked by each employee in the work unit and the percentage reduction in the average hours of work per week worked by that employee, exclusive of overtime hours, which shall be applied in a uniform manner and which shall be at least 10% but not more than 50% of the normal hours per week of that employee.
  • Describe the manner in which requirements for maximum federal financial participation in the plan will be implemented, including a plan for giving notice, where feasible, to participating employees of changes in work schedules.
  • Provide an estimate of the number of layoffs that would occur without implementation of the plan.
  • Specify the effect on any fringe benefits provided by the employer to the employees who are included in the work-share program other than fringe benefits required by law. Generally, the employer must maintain coverage under any defined benefit or defined contribution retirement plan for employees who receive work-share benefits under the same terms and conditions as if the employees were not included in the program. In addition, the employer must maintain any health insurance coverage in place under the same terms and conditions as if the employees were not included in the program.
  • Include a statement affirming that the plan is in compliance with all employer obligations under applicable federal and state laws.
  • Indicate whether the plan includes employer-sponsored training to enhance job skills and acknowledge that the employees in the work unit may participate in training funded under the federal Workforce Innovation and Opportunity Act, 29 USC 3101 to 3361, or another federal law that enhances job skills without affecting availability for work, subject to department approval.

Generally, work-share programs that contain all the required elements must be approved by the UI Division and can be modified during that period to account for changes in business conditions. While current employer experience indicates that work-share program approval takes about a week, it is possible that additional delays may occur due to the generally increased workload being handled by the UI Division. Also, the DWD is advocating some potential statutory changes that may broaden coverage to include more significant hour reductions, perhaps, up to 60%; however, that change would require an amendment by the Legislature and approval by the Governor.

Once approved, the business’s unemployment insurance reserve account will be charged for the payments to employees for the weeks specified in the approved program, similar to unemployed workers who receive unemployment benefits. However, by contrast to laying off employees that will collect unemployment, the business keeps these employees working, realizes the economic benefit of that work, ensures that economic challenges tie the employees to the employer’s workforce and ensures an adequate cushion for employees whose hours are subject to reduction.

Notably, while an employer’s work-share program can be in effect for a total of six months in any five-year period within the same work unit, that same employer is not prohibited from and can, in fact, have multiple plans for different work units.

If approved, it is critical for employers to explain the impact of the work-share plan upon the impacted employees to ensure an understanding of what will happen. In general, the employees will receive an amount equal to the employee’s regular benefit amount multiplied by the employee’s proportionate reduction in hours worked for that week as a result of the Work-Share Program.

Employees under an approved plan do not need to register for work or conduct a work search while in the plan; thus, these employees will be further tied into the employer’s workforce by the plan. However, employees must be available for work with the employer participating in the plan, should the employer need extra hours beyond what is anticipated.

An employer is not restricted by the plan from either terminating an employee or accepting an employee’s resignation. The employee’s eligibility for UI benefits after termination or resignation will be subject to the normal analysis.

More information on Work-Share Programs can be found on the Unemployment Insurance Division website. Interested employers can complete the Work-Share Plan Application and send or fax it to the UI Division:

Address:

DWD-Unemployment Insurance
Employer Service Team
P.O. Box 7942
Madison, WI 53707

Fax:   (608) 267-1400

For more information about the benefits of Work-Share Plans, please contact your Lindner & Marsack, S.C. attorney at (414) 273-3910.