Author Archives: Mary Gemeinhardt

LINDNER & MARSACK, S.C., JOINS THE GAVEL, A NATIONWIDE NETWORK OF DEFENSE FIRMS AND INSURANCE SPECIALISTS

Lindner & Marsack, S.C., today announced that the Firm has joined The Gavel your claims defense network,® a nationwide network of defense firms and insurance specialists. The Gavel was designed by experienced insurance industry professionals to streamline their work by providing direct access to and connections with experienced, vetted insurance defense attorneys and insurance specialists through a web-based, single-access point.

“The Gavel provides us with a nationwide platform to assist our insurance carrier partners looking for representation or counsel in other jurisdictions,” says Firm President Oyvind Wistrom. In addition, the Firm hopes to become a trusted resource for insurance carriers and clients of members of The Gavel in other states. “As these carriers and clients look to The Gavel for assistance connecting with an experienced, vetted Wisconsin defense firm, we are in a great position to leverage our deep experience handling both Employment Practice Liability Insurance defense matters as well as Worker’s Compensation defense matters,” added Wistrom.

In addition to connecting counsel with insurance specialists, The Gavel also hosts several conferences and events throughout the year that Lindner & Marsack, S.C. attorneys will attend. In 2021, The Gavel will continue to publish members’ success stories and legal updates in its magazine, The Gavel Strikes!, and it will launch The Gavel Course Catalog with web-based and in-person course selections for industry professionals to receive training and accredited education sessions.

For carriers, clients and friends of the Firm looking to connect with an experienced insurance defense firm in other states, please visit the website www.TheGavel.net. For members and friends of The Gavel seeking representation in Wisconsin, please contact Daniel Finerty at (414) 226-4807 or e-mail to dfinerty@lindner-marsack.com for assistance.

About The Gavel

The Gavel is a nationwide network of vetted law firm and specialist members. Its primary mission is to streamline work of insurance industry professionals by providing a single access point to some of the most qualified professionals in the industry.

Lindner & Marsack, S.C., today announced Andrew J. Quartaro and James W. Goonan became equity shareholders effective January 1, 2021. Quartaro and Goonan were tapped in early 2020 to lead the growing firm’s expansion by heading up new offices in Madison and Manitowoc, respectively.

“With Andrew and James leading the way, our Madison and Manitowoc offices have taken root as we continue to expand our presence and add depth to our already highly-regarded Worker’s Compensation Defense team,” says Firm President Oyvind Wistrom. “Their expertise and dedication will be a great asset to our leadership team and helps solidify our commitment to top-notch client service and building positive solutions for the businesses we serve.”

Quartaro has been repeatedly recognized by The Best Lawyers in America and Super Lawyers and was awarded an AV Preeminent Peer Review Rating by Martindale-Hubbell, the highest rating possible.

He is a frequent author and presenter on worker’s compensation issues and is a member of the State Bar of Wisconsin and the Civil Trial Counsel of Wisconsin.

 

 

 

Goonan serves on the Board of Directors of the Wisconsin Association of Worker’s Compensation Attorneys and is a frequent presenter on Wisconsin worker’s compensation issues. He has been recognized as a “Rising Star” by Super Lawyers and is a member of the State Bar of Wisconsin.

FFCRA LEAVE TO EXPIRE

By: Sally A. Piefer

December 22, 2020

Last evening the legislature approved a new COVID-19 stimulus/relief bill. The bill is expected to be signed by the President soon.

Many employers have wondered whether the legislature would extend FFCRA leave, specifically the emergency paid sick leave (EPSL) and emergency family and medical leave (EFMLA) provisions as the new year approaches and as COVID-19 cases continue to rise through much of the United States.

As you will recall, the leave provisions of the FFCRA covered all employers with fewer than 500 employees, and provided two buckets of leave:

  • EFMLA which provided paid leave for employees who are unable to work (or telework) because they need leave to care for a child (under age 18) if the child’s elementary or secondary school or place of care has been closed or if the child care provider is unavailable because of a public health emergency.
  • Emergency Paid Sick Leave provided limited paid sick leave to employees who are unable to work (or telework) because of leave needed for any of the following reasons:
        1. The employee is subject to a quarantine or isolation related to COVID-19;
        2. The employee has been advised by a health care provider to self-quarantine due to COVID-19;
        3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
        4. The employee is caring for an individual subject to a state, federal or local quarantine or isolation related to COVID-19;
        5. The employee is caring for their child if the child’s school or place of care has been closed, or the child care provider is unavailable due to COVID-19 precautions; or
        6. The employee is experiencing any other substantially similar conditions specified by the Secretary of HHS in consultation with the Secretary of the Treasury and the Secretary of Labor.

To benefit employers, the FFCRA provided a refundable tax credit equal to 100% of the qualified sick leave wages paid by the employer – subject to the FFCRA’s maximum payments.

Tax Credits Provided for Voluntary Extension of Leave

Although the legislature did not officially extend the leave provisions – meaning the mandatory leave expires on December 31, 2020, employers covered by the FFCRA can voluntarily continue to provide the leave through March 31, 2021 and continue to receive the tax credit. The extension of the tax credit only applies to private employers – no provisions have extended the tax credit to public employers.

The extension of the tax credit also does not mean that an employee who already exhausted their EPSL will get another bank of EPSL. However, as drafted, it would appear that if an employer’s FMLA would restart before March 31, 2021, that employer would have to provide another new bank of EFMLA through March 31, 2021. Hopefully the DOL will soon issue guidance on how the new legislation affects EFMLA.

Employer Next Steps

Employers covered by the FFCRA will need to decide whether they will continue to provide EPSL and EFMLA through March 31, 2021. If you do decide to do so, it would make sense to let your employees know about the leave, and that the extension of leave will expire on March 31, 2021.

We will continue to monitor and provide further updates on COVID-19 developments. If you have questions, please contact Sally Piefer at 414-226-4818 or spiefer@lindner-marsack.com, or contact your regular Lindner & Marsack attorney.

 

The EEOC Releases Updated Guidance on Mandatory COVID-19 Vaccinations and Related Employment Laws

By: Oyvind Wistrom

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) released updated guidance on the responsibilities and rights of employers and employees related to the COVID-19 vaccine, including mandatory employer vaccination programs.

The publication entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” is available here.  The new EEOC guidance provides information to employers and employees about how mandatory COVID-19 vaccinations interact with the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).

The EEOC guidance confirms that employers are allowed to implement and enforce a mandatory COVID-19 vaccination policy for employees, with certain exceptions and caveats.  Some of the key takeaways from the EEOC include the following:

  • Employers are allowed to require employees to receive an FDA approved COVID-19 vaccine (once it becomes available) as a condition of employment or continued employment.
  • Employers must attempt to accommodate employees who, due to a medical disability under the ADA or sincerely-held religious beliefs under Title VII, decline or refuse to receive the vaccine.
  • If an employer determines, based on objective evidence, that the presence of an unvaccinated employee (i.e., employee who declines or refuses to be vaccinated because of a disability or sincerely-held religious reasons), presents a direct threat to the health and safety of other persons in the workplace that cannot be reduced or eliminated through a reasonable accommodation, the employer can exclude the employee from the workplace.
  • When an employer seeks to exclude an unvaccinated employee from the workplace due to a direct threat presented by his or her presence in the workplace, the employer may not automatically terminate the employee. Rather, the employer must attempt to accommodate the employee if he or she cannot receive the vaccine due to a disability or a sincerely held religious belief. Employers must assess four factors in making this determination: 1) the duration of the risk presented by the unvaccinated employee; 2) the nature and severity of the potential harm presented by the unvaccinated employee’s presence in the workplace; 3) the likelihood that harm will occur; and 4) how imminent that harm is to others in the workplace.
  • In determining whether a reasonable accommodation exists under the ADA, the employer should consider the feasibility of possible reasonable accommodations such as working remotely, transferring the employee to another worksite where he or she can work independently, or possibly placing the employee on a leave of absence. In so doing, the employer should consider the employee’s leave rights under the FFCRA (set to expire on December 31, 2020), both state and federal FMLA, as well as under general employment policies.
  • The administration of a COVID-19 vaccine by an employer (or by a third-party with which the employer has contracted to provide vaccinations) is not a “medical examination” under the ADA because the employer is not seeking information about the employee’s current health status. Requiring a vaccination also does not implicate the Genetic Information Non-Discrimination Act (GINA) because an employee’s genetic information is not being used to make employment decisions and no genetic information is being sought.
  • Although the administration of the vaccine is not a “medical examination” under the ADA, the guidance notes that if a health care provider asks certain pre-vaccination screening questions to ensure there is no medical reason for a person not to receive the vaccine, these questions may constitute a “medical examination” under the ADA because they may solicit information about an employee’s disability. Therefore, any pre-vaccination screening questions that are disability-related must be job-related and consistent with business necessity, and responses should be maintained as confidential.
  • Employers are also permitted to require employees to provide proof that they received a COVID-19 vaccine. Such an inquiry is not a medical examination under the ADA because it is not likely to elicit information about an employee’s disability status.  However, an employer should be careful to ensure that employees do not disclose any medical information beyond proof of the vaccination and they should avoid asking why the employee did not receive the vaccination.

With the first round of COVID-19 vaccines finally becoming available, and with several other possible vaccines on the horizon, employers need to carefully consider whether the implementation of a mandatory vaccination program is the right business decision, or whether the spread of the virus can be ameliorated through other methods or precautions.  The nature of the business, and the amount of interaction that is required between employees, customers, clients, and vendors should help guide the decision-making process of whether a mandatory vaccination program is necessary or appropriate.

If you have any questions about these guidelines or any other matter, please contact  Oyvind Wistrom or your Lindner & Marsack attorney at (414) 273-3910 to seek counsel.

LINDNER & MARSACK, S.C., WELCOMES ATTORNEY MATTHEW KURUDZA TO WORKER’S COMPENSATION DEFENSE TEAM

Lindner & Marsack, S.C., announced today that Attorney Matthew Kurudza has joined the firm as an Associate on their Worker’s Compensation Defense team. Kurudza will practice out of Lindner & Marsack’s Milwaukee headquarters.

Kurudza’s practice focuses on defending worker’s compensation claims throughout Wisconsin. He comes to Lindner & Marsack with wide range of experience, having previously represented major corporations, small businesses, insurance companies and self-insured employers. In addition to his work experience, Kurudza recently served on the Board of Director for the Milwaukee Insurance Adjusters Association. He has frequently written and presented on current developments in the area of Worker’s Compensation.

“Our Worker’s Compensation Defense team is widely recognized for its depth of experience and the excellent results we achieve for our clients,” says Firm President Oyvind Wistrom. “Matthew will be a great asset to that team as we continue to deliver on our promise of providing top quality labor and employment representation and work injury defense to our clients.”

Kurudza received his law degree from Marquette University Law School in 2014 and his Bachelor of Business Administration in Marketing from the University of Wisconsin-Whitewater in 2009. He is licensed to practice in the State of Wisconsin and is a member of the State Bar of Wisconsin and the Wisconsin Association of Worker’s Compensation Attorneys (WAWCA).

LINDNER & MARSACK, S.C., ANNOUNCES 2020 SUPER LAWYER AND BEST LAWYER DESIGNATIONS

Lindner & Marsack, S.C., today announced five attorneys acknowledged by Super Lawyers magazine. Honorees include Douglas M. Feldman, Thomas W. Mackenzie, Gary A. Marsack, Jonathan T. Swain and Oyvind Wistrom. All were also recognized as Best Lawyers by U.S. News & World Report, along with Daniel J. Finerty. The firm itself has also once again been selected as a Best Law Firm (for 2021) in the U.S. News & World Report rankings.

“Our team never missed a beat, despite the challenges faced in 2020 by law firms and clients alike,” said Wistrom, President of Lindner & Marsack. “We’re especially honored that the dedication and tenacity of these attorneys has shone through and been acknowledged by their peers by Super Lawyers and by U.S. News & World Report.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Attorneys are selected using a rigorous, multi-phase rating process in which peer nominations and evaluations are combined with third party research. The objective of the program is to create a credible, comprehensive, and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

Similarly, Best Lawyers rankings are based on a rigorous process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process.

“This recognition highlights the accomplishments of several individual attorneys as well as the quality of work provided by the entire firm,” said Wistrom. “Every single day, we pride ourselves on helping employers in Wisconsin and across the country minimize risk and navigate their toughest legal challenges.”

Workers’ Compensation in a Post COVID World

Lindner & Marsack, as the Wisconsin firm member of the National Workers Compensation Defense Network, would like to invite you to this year’s NWCDN virtual annual conference. This year’s conference is “Workers’ Compensation in a Post COVID World.”  The day-long program will focus on both COVID and COVID inspired topics with presenters including a Director from the CDC, the Senior Contributing Editor for the AMA Guides, leaders of industry, the Plaintiffs’ bar and the judiciary from all over the country.

 

This free daylong seminar features not only the main stage speakers, but a second stage that includes panel discussions comprised of law firms from all over the country providing both COVID and non COVID state specific updates.  Click the registration link below and we look forward to “seeing” you on November 12, 2020.

 

Thursday, November 12, 2020,

COMPLIMENTARY VIRTUAL SEMINAR

from 10:00 a.m. to 6:00 p.m. EST

 

Click here to Register Now!

NEW SEPARATION NOTICE REQUIREMENTS

By: Samantha J. Wood

Pursuant to a recently issued emergency rule from the Department of Workforce Development (“DWD”), as of November 2, 2020, Wisconsin employers will be required notify workers about the availability of unemployment insurance at the time of their separation from employment.

This rule was enacted pursuant to a provision in the federal Families First Coronavirus Response Act (“FFCRA”) that requires promulgation of this rule as a condition of receiving federal emergency funding. Specifically, the Emergency Unemployment Insurance Stabilization and Access Act of 2020 (“EUISAA”) provides that, as a requirement for receiving additional federal funding for state unemployment insurance programs, the state must require employers to provide notification of the availability of unemployment compensation to employees at the time of separation from employment.

This notice can be in the form of a letter, e-mail, text message, or flyer. The DWD has suggested providing employees with the following language along with a link to the unemployment poster that is already required under law:

Applying for Unemployment Benefits –

You may file an unemployment claim in the first week that your employment stops or your work hours are reduced. See the DWD’s digital poster for when and how to apply for unemployment benefits.

While the DWD recognizes that not all employees will meet the eligibility requirements for unemployment insurance, because the EUISAA does not distinguish between different types of separations, it is recommended that the notice be provided to all employees upon separation, regardless of the reason for or circumstances surrounding the separation.

While there is no monetary penalty for noncompliance with this rule, an employee who does not receive notice and later applies for unemployment benefits may be permitted to backdate their claim. Thus, an employer’s failure to provide this notice could result in an employee having additional time to file an initial claim for benefits.

If you have any questions about this new rule, please contact your Lindner & Marsack attorney or the Firm at (414) 273-3910.

 

Court Extends Temporary Restraining Order Blocking Wisconsin Governor From Releasing Names of Companies with Positive COVID Cases

By: Sally A. Piefer

Last week we reported that Governor Evers planned to release the names of more than 1,000 businesses who have had 2 or more employees test positive for COVID-19. The Wisconsin Manufacturers & Commerce (WMC) reported that it had been regularly urging the Governor to keep this information confidential. WMC claimed that a letter was sent 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, but received no response before it alerted its membership of the impending information release. On October 1, the WMC, along with two local chambers of commerce, filed suit and obtained a temporary restraining order (TRO) blocking the release of this information.

This morning a court hearing was conducted by Zoom. Based on the arguments of counsel, the Court decided to extend the TRO until the parties have had an opportunity to fully brief the issues and for the Court to make an informed decision. The next hearing is scheduled for November 30, 2020 at 2:00 p.m. The parties, along with the Milwaukee Journal Sentinel, who intervened in the case, will be filing a variety of briefs between October 9th and November 6th.

We will continue to provide updated information as it becomes available. Should you have any questions, please feel free to contact Sally Piefer or your normal contact at Lindner & Marsack.

COURT ISSUES TEMPORARY RESTRAINING ORDER PREVENTING WISCONSIN GOVERNOR FROM RELEASING NAMES OF BUSINESSES EXPERIENCING COVID CASES

By Sally Piefer

Yesterday we reported that, despite repeated requests from the Wisconsin Manufacturers & Commerce (WMC), Wisconsin’s Governor Evers was set to release to the public the names of Wisconsin businesses who have had at least 2 employees test positive for COVID. The release of business names was scheduled for Friday, October 2, 2020.

Yesterday, the WMC, along with two other local Chambers of Commerce, filed a lawsuit in Waukesha County Court on the issue. The WMC and the Chambers also sought a temporary restraining order (TRO), asking the Court to immediately prevent the Governor’s office from taking the proposed action.

The Waukesha County judge granted the TRO request late on Thursday afternoon. The Order reads:

Upon the motion of Plaintiffs Wisconsin Manufacturers and Commerce, Muskego Area Chamber of Commerce, and New Berlin Chamber of Commerce and Visitors Bureau, pursuant to Wis. Stat. § 813.025 and for good cause shown;

It is hereby Ordered that Defendants Tony Evers, Andrea Palm, and Joel Brennan, and their officers, agents, and employees (collectively referred to as “Defendants”), are temporarily restrained from releasing any information relating to businesses whose employees have tested positive for COVID-19 or who contract tracing has shown close connections.

This Order shall remain in effect for 5 days unless extended after notice and hearing.

The Court will likely be scheduling a hearing on the request for a preliminary injunction either next week or the week after. Typically, TRO’s can be in effect for up to 5 days, unless extended by agreement of the parties. We will continue to keep you abreast of further developments on this issue. Should you have any questions, please feel free to contact Sally Piefer or your normal contact at Lindner & Marsack.