PRESIDENT SIGNS FAMILIES FIRST CORONAVIRUS RESPONSE ACT

By Sally Piefer and Oyvind Wistrom

Last evening the President signed the Families First Coronavirus Response Act. The legislation had passed the Senate only hours before. The Response Act has a number of provisions which employers must be aware of—an expansion of the federal Family & Medical Leave Act (FMLA) and a paid sick time.

Expansion of the FMLA

The expanded provisions, which provide coverage for public health emergency leave, are in place through December 31, 2020, and this public health emergency leave covers all employers with fewer than 500 employees. This is a significant departure from the current provisions of the FMLA—which apply to employers with 50 or more employees who work within a 75-mile area. An eligible employee is one who has been employed with the employer for at least 30 calendar days.

The new leave provides coverage 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. Of course, the term “public health emergency” means an emergency with respect to COVID-19 declared by a federal, state or local authority. This is the only qualifying need for emergency FMLA leave and is a departure from the earlier version of the bill.

The specific leave provisions allow an employee to take up to 12 weeks of job-protected leave. If the need for such leave is foreseeable, the employee must provide notice of leave as soon as practicable. The first 10 days of leave are unpaid, but the employee may substitute available paid leave. After the first 10 days, the employer must provide paid leave for each day the employee takes leave, up to a maximum of 12 total weeks of leave. Pay for the employee must be at no less than 2/3 of the employee’s regular rate of pay for each hour the employee would normally be scheduled to work. Special rules are in place for employees who have variable work schedules. The pay is also capped at $200 per day and $10,000 in total.

Employees are also generally entitled to reinstatement—but restoration is not required of an employer with less than 25 employees if (i) the position the employee held does not exist due economic conditions or other conditions caused by the public health emergency; (ii) the employer makes a reasonable effort to restore the employee to a position similar to the one held before the leave, with equivalent pay, benefits and other terms and conditions of employment; and (iii) if the employer’s reasonable efforts fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available during the earlier of the 1-year period after the public health emergency concludes or the date which is 12 weeks after the date the employee’s leave began.

Employers who are subject to a multi-employer collective bargaining agreement (CBA) can fulfill their obligations under this FMLA expansion by making contributions to the fund, plan or program based on the paid leave provisions provided under the CBA.

Emergency Paid Sick Leave

The Emergency Paid Sick Leave Act provisions of the legislation mandate that employers who employ less than 500 employees provide 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 state, federal or local quarantine or isolation related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related 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.

All employees are eligible for the emergency paid sick leave—regardless of the length of their employment. After the first workday an employee needs leave, the company may require an employee to follow its normal call-in procedures to continue receiving paid sick time. However, employers may not require employees to first exhaust other available paid leave before providing emergency paid sick leave. This emergency leave is in addition to, other leave which an employer may already provide under existing policies or CBAs.

For full-time employees, the paid sick leave is limited to 80 hours; for part-time employees, the paid leave is equal to the number of average hours that an employee works during a 2-week period.

The sick leave is paid at the employee’s regular rate of pay for qualifying leave reasons 1-3 above, but only at 2/3 of the employee’s regular rate of pay for qualifying reasons 4-6. Paid sick leave is calculated at not less than the greater of the following: (i) the employee’s regular rate of pay, (ii) the federal minimum wage or (iii) the state minimum wage in the state in which the employee is employed. The pay is further limited and shall not exceed $511 per day (or $5,110 in the aggregate) for leave connected with reasons 1-3 above, and shall not exceed $200 per day (or $2,000 in the aggregate) for reasons 4-6 above. Different rules apply for employees with variable work schedules.

This paid sick leave does not carry over from one year to the next, and this part of the legislation also sunsets on December 31, 2020. Employers may not discriminate against, discipline or discharge an employee who takes emergency paid sick leave, files a complaint or initiates a lawsuit about the emergency leave, or otherwise participates in a proceeding. Employers who violate the Act are subject to the same penalties as are provided for violations of the Fair Labor Standards Act (FLSA).

Small employers employing fewer than 50 employees may be able to claim an exemption to the requirements of the paid sick leave portion of the Act if it can show that compliance would jeopardize the viability of the business as a going concern.

Tax Credits for Employers

The Act also provides a series of refundable tax credits for employers who are required to provide the Emergency Paid Sick Leave and Emergency Paid Family and Medical Leave described above. These tax credits are allowed against the employer portion of social security and Medicare taxes (collectively referred to as FICA). While this limits application of the tax credit, employers will be reimbursed if their costs for qualified sick leave or qualified family leave wages exceed the taxes they would owe.

Specifically, employers are entitled to a refundable tax credit equal to 100% of the qualified sick leave wages paid by the employer for each calendar quarter in adherence with this Act. The qualified sick leave wages are capped at $511 per day ($200 per day if the leave is for caring for a family member or child).

Similarly, employers are entitled to a refundable tax credit equal to 100% of the qualified family leave wages paid by the employers for each calendar quarter in accordance with this Act. The qualified family leave wages are capped at $200 per day for each individual up to $10,000 total per calendar quarter. Only those employers who are required to offer Emergency FMLA and Emergency Paid Sick Leave may receive these credits.

Next Steps

The Secretary of Labor will have the authority to (i) issue regulations, (ii) exclude certain health care providers and emergency responders from the definition of an eligible employee and (iii) exempt small businesses with less than 50 employees where compliance would jeopardize the viability of the business.

The effective date of the new mandate will be no later than 15 days after the Act was signed by President Trump, which means an effective date no later than April 2, 2020.  Also, a model notice that employers will need to post, should be available from the Secretary of Labor within the next week, and regulations for calculating the paid sick leave are supposed to be available within the next 15 days.

We will continue to monitor further COVID-19 developments. If you have questions or concerns, please contact your Lindner & Marsack attorney.

 

This Legal Alert provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

 

COVID-19 Update and Cancellation of Firm Seminar

By: Oyvind Wistrom

These are difficult and unusual times, to say the least.  We wanted to let you know that Lindner & Marsack, S.C. remains as committed as ever to your success, and are working extra diligently to help you prepare and answer questions about COVID-19, and to navigate this quickly evolving situation.

To do this, we will be making a few changes that will help us to continue to serve our clients (while keeping you and our staff safe).  Here are some of the things we are doing:

  • We have ensured that there will be no disruption in our service to you. Many of our attorneys are fully equipped to work from home. Our IT infrastructure is backed up and is secured.
  • We will continue to provide you with E-alerts as necessary to help address the continually evolving legal landscape associated with COVID-19.
  • At this point, we are not prohibiting any visitors from entering our offices. This policy may change, depending on further word from the CDC, and we will keep you posted.
  • If clients prefer, we can shift in-person client meetings to conference calls.
  • If any of our lawyers are working remotely, calls can be forwarded to their cell phones and the voicemail messages will continue to be sent to the lawyer via email.
  • We have cancelled the May 6, 2020 Firm Seminar, which was scheduled to be held at the new Brookfield Conference Center. We are planning to present information from this seminar through periodic E-alerts after we stabilize from the effects of the coronavirus.

Thank you for your understanding as we take these precautionary steps.  If you have any questions or concerns, please reach out to your Lindner & Marsack attorney.

Wisconsin Worker’s Compensation In-Person Hearings, Prehearings and Mediations Suspended!

By: Chelsie Springstead

Per the OWCH COVID-19 Notice from State of Wisconsin, Division of Hearings and Appeals, issued on Friday, March 13, 2020, as of next Monday, March 23, 2020, the Office of Worker’s Compensation Hearings will stop conducting in-person hearings, prehearings and mediations.  This is expected to continue through April 20, 2020.

Hearings will be converted to telephonic settlement conferences.  Prehearings and mediations will be conducted telephonically, as well.  Revised notices will be sent out to all parties with call-in instructions.

Please note that Hearings scheduled for this week, March 16-20, are still being held in-person.  However, the parties can contact the Administrative Law Judge assigned to the file if they would like to convert any hearings this week to telephonic settlement conferences.

If you have any questions, please feel free to contact Chelsie Springstead or any member of the Lindner & Marsack worker’s compensation team.  We will continue to provide you with email updates as things change.

 

 

Addressing COVID-19 Workplace Issues: Responding to Employers’ Most Common Questions

By:  Oyvind Wistrom and Sally Piefer

The NBA has suspended play.  The NCAA tournament has been cancelled.  The World Health Organization (WHO) has now declared that the COVID-19 Coronavirus is a pandemic.  Either your business has already been directly or indirectly affected or it inevitably will be affected by COVID-19.  What can you do as an employer?  The following tips should help you navigate the novel issues created by this unprecedented situation.

  1. What if an employee reports to work with flu-like symptoms – what can we do as an employer?

If any employee presents themselves at work with a fever or difficulty breathing, employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat.  Employers must maintain all information about employee illness as a confidential medical record in compliance with the Americans with Disabilities Act (ADA).  If an employee is experiencing these symptoms, the employee should be directed to seek immediate medical evaluation.  It is also recommended that employers train supervisors on how to recognize these symptoms, while stressing the importance of not overreacting to situations in the workplace potentially related to COVID-19 in order to prevent panic among the workforce.

  1. Can we ask an employee to stay home or leave work if they exhibit symptoms of the COVID-19 coronavirus or the flu?

Yes.  The Center for Disease Control (CDC) has made it clear that employees who exhibit influenza-like symptoms at work during a pandemic should leave the workplace and be asked to stay home.  Employees who have symptoms of acute respiratory illness are recommended to stay home until they are free of a fever (100.4º F), signs of a fever, or any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom altering medicines.  Now that the COVID-19 virus has been declared a pandemic by the WHO, the Equal Employment Opportunity Commission (EEOC) has stated that advising workers to go home is not disability-related if the symptoms presented are akin to the seasonal influenza.  An employer may therefore require workers to go home if they exhibit symptoms of the COVID-19 coronavirus or the flu without running afoul of the EEOC’s interpretation of the ADA.

  1. Can an employer take an employee’s temperature at work to determine whether they might be infected?

Maybe.  The ADA places restrictions on the inquiries that an employer can make into an employee’s medical status, and the EEOC considers taking an employee’s temperature to constitute a “medical examination” under the ADA.  The ADA prohibits employers from requiring medical examinations and making disability-related inquiries unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.

The EEOC takes the position during a pandemic that employers should rely on the latest CDC and state or local public health assessments to determine whether the pandemic rises to the level of a “direct threat.”  The assessment by the CDC as to the severity of COVID-19 will likely provide the objective evidence needed for a medical examination.  If COVID-19 becomes widespread, as determined by state or local health authorities or the CDC, then employers would likely be permitted to take an employee’s temperature at work.  However, as a practical matter, an employee may be infected with COVID-19 without exhibiting any symptoms such as a fever, so temperature checks may not be the most effective method for protecting your workforce.

  1. An employee of ours has tested positive for COVID-19. What should we do?

In addition to sending the employee with the positive test home, you should send all employees who worked closely with that employee home for a 14-day period of time to ensure the infection does not spread.  Make sure the affected employee identifies all individuals who worked in close proximity (within six feet) with them in the previous 14 days to ensure you have a full list of those who should be sent home.  When sending the employees home, do not identify by name the infected employee or you could risk a violation of the ADA.  You may also want to consider asking a cleaning / remediation company to undertake a deep cleaning of your affected workspaces. If you work in a shared office building or area, you should inform building management so they can take whatever precautions they deem necessary.

  1. Can an employee refuse to come to work because of fear of COVID-19 infection?

Employees are only entitled to refuse to report to work if they believe they are in imminent danger.  Section 13(a) of the Occupational Safety and Health Act (OSH Act) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.”  This is a relatively high standard that requires a “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”

For an employee to refuse to report for work, the threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short period of time.  Requiring travel to certain areas of the world or requiring employees to work with patients in a medical setting without personal protective equipment at this time may rise to this threshold.  Most work conditions in the United States, however, would not presently meet this threshold.  Each case must be evaluated on its own merits and employers should seek to determine whether their workplace creates imminent danger to employees.

  1. May an employer require a new employee to have a post-offer medical examination to determine their general health status?

Yes, the ADA allows a medical examination of a new employee as long as it is required only after a conditional offer of employment is made.  The medical examination is permitted so long as all entering employees in the same job category are required to undergo the medical examination and the information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record.

Employers may also ask if they are experiencing any symptoms of COVID-19 – fever, cough, shortness of breath or other acute respiratory symptoms.  If the applicant or new employee answers yes, then you can ask them to delay starting for 14 days.  Be sure to maintain the confidentiality of the responses.

  1. May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic?

Yes.  Telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation.  In addition, employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.  An employer is not required to provide telework as an option to all employees, but is recommended that if the opportunity is presented to a certain classification of employees, all other employees in that job classification should similarly be permitted to telework.

8.     During a pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, in the workplace?

Yes.  Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA.  The messages you should be giving to your employees are:

  • Wash your hands often with soap and water for at least 20 seconds. If soap and water are not available, use an alcohol-based hand sanitizer.
  • Avoid touching your eyes, nose, and mouth with unwashed hands.
  • Avoid close contact with others, especially those who are sick.
  • Refrain from shaking hands with others for the time being.
  • Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
  • Clean and disinfect frequently touched objects and surfaces.
  • And, perhaps most importantly, tell employees to stay home if they are sick.

9.     Can we require employees who are sent home or who do not report for work to use accrued PTO time?

Yes.  At least under Wisconsin law, an employer may require employees to use accrued PTO time if they are unable or unwilling to report to work – this is the case even if the employer shuts down a facility and the employee is therefore unable to work.  The only exception in Wisconsin would be with respect to employees who suffer from a serious health condition under the Wisconsin FMLA.  In such cases, an employer is not permitted to mandate that employees use their personal PTO time during the pendency of the Wisconsin approved portion of the FMLA leave (two weeks).  After an employee has used up their two-week allotment of Wisconsin FMLA, an employer can then mandate that PTO be utilized.

  1. As Spring Break is approaching, what questions can I ask about employees’ personal vacations?

You can ask your employees whether they have traveled to any locations the CDC or state health officials have indicated are destinations with a risk of community-spread coronavirus—currently about 30 countries in Europe (along with China, Iran, Japan, Singapore, South Korea, Taiwan & Thailand).  Check the CDC website for a list of current countries (https://wwwnc.cdc.gov/travel).  The CDC recommends that anyone traveling to these countries should stay home for 14 days from the time the employee left the country and to practice social distancing.  Some employers have initiated mandatory time away from work if employees are returning from a country on the CDC list.

You can also ask employees whether they been on a cruise ship.  If on a cruise ship in the last 14 days, the employee should stay home for 14 days if a case of Coronavirus was reported on the ship during the cruise.  Otherwise, it does not appear the CDC is currently recommending any work-related social distancing – unless the person is exhibiting symptoms – fever, cough, trouble breathing.  However, the situation is in constant flux, so you may want to check the CDC website or contact legal counsel for up to date guidance.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any other labor or employment matter involving your business, please either contact Oyvind Wistrom at owistrom@lindner-marsack.com or Sally Piefer at spiefer@lindner-marsack.com, or any other attorney you may work with at the firm.

 

LINDNER & MARSACK, S.C., ANNOUNCES DANIEL PEDRIANA’S NOMINATION AS A FELLOW OF THE COLLEGE OF WORKERS’ COMPENSATION LAWYERS

Lindner & Marsack, S.C., today announced that Daniel Pedriana has been nominated as a Fellow of the College of Workers’ Compensation Lawyers.

According to the College’s Board of Governors, who approved Pedriana’s nomination, election as a Fellow represents the recognition by your colleagues that you have distinguished yourself as an outstanding professional. It recognizes that an attorney has made a sustained contribution to the field and meets the College’s standards of integrity, professionalism and character.

“I’m honored to be recognized by the highly-regarded College of Workers’ Compensation Lawyers,” says Pedriana. “In addition, I’m humbled by the company I’ll join as a Fellow of the College – attorneys who demonstrate the highest level of professional expertise as well as a strong commitment to ethical standards, integrity and leadership.”

Pedriana is a shareholder and member of the Board of Directors of Lindner & Marsack. His practice primarily focuses on defending workers’ compensation claims for the insurance industry and self-insured employers. He also frequently handles related employment and subrogation issues. Pedriana lectures and speaks on workers’ compensation law, along with related labor and employment law and subrogation topics, in Wisconsin and throughout the United States.

A special induction ceremony and dinner for new Fellows will be held at the Westin New Orleans Canal Place Hotel on Saturday, March 28, 2020.

LINDNER & MARSACK, S.C., ANNOUNCES SIGNIFICANT EXPANSION OF WORKER’S COMPENSATION DEFENSE PRACTICE WITH TWO NEW FIRM OFFICES OPENING IN MADISON AND MANITOWOC

Lindner & Marsack, S.C., today announced the opening of two new firm offices in Madison and Manitowoc. The offices, which will each be staffed by a lead attorney as well as additional support staff, represent a significant expansion of the firm’s lauded worker’s compensation defense practice.

Andrew J. Quartaro will head Lindner & Marsack’s new Madison office located on the Capitol Square. In Manitowoc, the firm welcomes James W. Goonan to lead that office. Both Quartaro and Goonan formerly practiced with vonBriesen & Roper as well as Peterson, Johnson & Murray.

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.

“We are committed to doing whatever we can to deliver our very best results to every client, every day,” says Oyvind Wistrom, Firm President. “Having two top-notch attorneys join our well-regarded worker’s compensation defense team gives us additional depth and expertise, while two new office locations offer a higher level of service and convenience for our clients.”

Both offices officially opened January 2, 2020. For more information, please call (414) 273-3910 or visit www.lindner-marsack.com.

 

NLRB RESTORES EMPLOYER RIGHTS: POLICIES REGARDING RESTRICTIONS ON E-MAIL USAGE AND CONFIDENTIALITY DURING WORKPLACE INVESTIGATIONS

By: David C. Keating

The National Labor Relations Board (“Board”) continues to restore employer rights under the Trump administration.  Within the last week, two decisions have been handed down by the Board overturning prior Obama administration decisions.

Employer’s Right to Restrict E-mail Use

In a decision dated December 16, 2019, the Board reestablished the right of an employer to restrict employee use of its e-mail system so long as the restrictions are set forth on a nondiscriminatory basis.

Overruling the Obama Board decision in Purple Communications, Inc., which held that employees have a presumptive right to use the system, on non-working time, for communications protected by Section 7 of the National Labor Relations Act (“Act”), the Board, in Caesars Entertainment, 368 NLRB No. 143, held that employees do not have the statutory right to use employer e-mail or other information-technology resources to engage in non-work-related communications.  Rather, employers have the right to control the use of their equipment, including e-mail and other IT systems, and may lawfully restrict the use of those systems, provided that, in doing so, the employer does not discriminate against union or other protected communications.

The Board’s decision in Caesars does recognize that employees must have adequate avenues to engage in communications protected by Section 7 of the Act.  The decision creates an exception for circumstances where the use of employer-provided e-mail is the only reasonable means for employees to communicate with each other on non-working time during the workday.

Workplace Investigation Confidentiality Rules of Limited Duration Are Lawful 

In Apogee Retail LLC, 368 NLRB No. 144, dated December 16, 2019, the Board held that employer work rules requiring confidentiality during the course of a workplace investigation are presumptively lawful.

Overturning the Obama Board decision in Banner Estrella Medical Center, which required employers to prove, on a case-by-case basis, that the integrity of an investigation would be compromised without confidentiality, the Board in Apogee concluded that the framework set forth in Banner improperly placed the burden on the employer to determine whether its interests in maintaining the integrity of an investigation outweighed employee Section 7 rights.

By applying the test for facially neutral workplace rules recently established in Boeing Company, 365 NLRB No. 154 (2017), the Board determined that investigative confidentiality rules limited to the duration of the investigation are generally lawful.  In this case, the Board remanded the case for further consideration because the employer’s confidentiality rules did NOT limit confidentiality to the duration of the investigation.

This decision is more aligned with EEOC enforcement guidance.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any questions about lawfully restricting the use of your Company’s e-mail system, work rules or any other labor or employment matter involving your business, please either contact me at dkeating@lindner-marsack.com or any other attorney you may work with at the firm.

SEVENTH CIRCUIT ISSUES ADA REASSIGNMENT GUIDANCE

By: Kristofor L. Hanson & Christopher J. Saugstad

November 25, 2019

The Seventh Circuit Court of Appeals recently clarified its position concerning reassignment as an accommodation under the Americans with Disabilities Act (the “ADA”). Under the ADA, employers have an affirmative duty to reasonably accommodate an employee’s disability. While engaging in the interactive process to find a reasonable accommodation, in situations where an employee is unable to perform the essential functions of his or her job even with reasonable accommodations, employers are required to evaluate reassignment to a vacant position as an accommodation. Previously, in EEOC v. United Airlines, Inc., 693 F.3d 760, 764 (7th Cir. 2012), the Seventh Circuit explained that the ADA requires employers to appoint disabled employees to vacant positions for which the employee is minimally qualified, unless the reassignment would pose an undue hardship to the employer or there is a bona fide seniority system in place. Pursuant to this decision, employers cannot force the disabled employee to go through a competitive process to be placed into a vacant position as a reasonable accommodation.

On November 15, 2019, the Seventh Circuit revisited the issue of reassignment under the ADA in Ford v. Marion Cty. Sheriff’s Office, No. 18-3217, 2019 U.S. App. LEXIS 34072, (7th Cir. Nov. 15, 2019). Ford worked as a deputy at the county sheriff’s office until her hand was seriously injured in a car accident while on duty. Ford was reassigned to light duty for about a year until she accepted a position as a jail visitation clerk; Ford was given the option to accept the visitation position, resign, or be fired. After Ford’s reassignment, she alleged she suffered disability-based harassment by co-workers, refusals to accommodate her scheduling needs, and several discriminatory promotion denials. Ford brought an action against Marion County for violations under the ADA.

The Seventh Circuit found the district court properly granted summary judgment on Ford’s claim regarding reassignment to the visitation clerk position and explained a “demotion can be a reasonable accommodation when the employer cannot accommodate the disabled employee in her current or prior jobs or an equivalent position.” The Court pointed out EEOC guidance regarding reassignment and demotion states: “An employer may reassign an individual to a lower graded position if … there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation.”

The Court noted that if there had been a vacant position that more closely matched Ford’s previous position, under the ADA, Marion County would have been obligated to reassign her to that position.

Significantly, the Seventh Circuit suggested that Marion County, as the employer, had an obligation to “to canvass available positions and, if a vacant job existed that Ford was qualified to perform with or without reasonable accommodations, to offer it to her.” Employers should review their current process regarding reassignment as a potential reasonable accommodation. Once reassignment becomes a potential accommodation, employers should actively canvas their current vacancies in relation to the disabled employee’s qualifications. If there is a match, the employee should be offered the job. Merely inviting employees, without any employer assistance, to apply for any vacant positions for which they think they may be qualified is insufficient.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law. If you have any questions about the ADA, reasonable accommodation and the possibility of reassignment, or any other labor or employment issue involving your business, please contact us at any time.

LINDNER & MARSACK, S.C., ANNOUNCES SUPER LAWYER DESIGNATIONS FOR 2019

Lindner & Marsack, S.C., today announced five attorneys have been acknowledged as Super Lawyers for 2019. Honorees include Douglas M. Feldman, Thomas W. Mackenzie, Gary A. Marsack, Jonathan T. Swain and Oyvind Wistrom.

“We’re very gratified that the dedication of these individual attorneys is being recognized and honored by their peers through Super Lawyers,” said Wistrom, President of Lindner & Marsack.

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.

In addition, Lindner & Marsack has once again been selected as a Best Law Firm (for 2020) in U.S. News & World Report’s annual Best Lawyers rankings. These selections 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.

“Every single day, we dedicate ourselves to helping employers in Wisconsin and across the country minimize risks and navigate their toughest legal challenges,” said Wistrom. “First and foremost, we do what we do to advance the interests and success of our clients. To be recognized for that work by leading industry publications and rankings adds another element of pride and satisfaction for our entire team.”