Update on OSHA’s Mandatory Vaccine Rule: What Should Employers Do?

By Sally A. Piefer

November 23, 2021

As we previously reported, on November 4th, OSHA released its emergency temporary standard (“ETS”) which requires employers with 100 or more employees to develop, implement, and enforce a written mandatory COVID-19 vaccination policy. Alternatively, covered employers may adopt a written policy requiring employees to either choose to be vaccinated or undergo regular testing and wear a face covering at work.

The ETS gave employers until December 5, 2021 to do the following:

  • Develop a written vaccination and/or testing policy.
  • Determine which employees are vaccinated and collect documentation from employees who are vaccinated.
  • Develop educational materials to provide to employees covering (i) requirements of the ETS and its workplace policies; (ii) a copy of the CDC’s Key Things to Know About COVID-19 Vaccines; (iii) information prohibiting retaliation and discrimination; and (iv) information discussing criminal penalties for intentionally providing false information or documentation.

The testing and masking requirements were set to be implemented on January 4, 2022.

Almost immediately, a number of lawsuits were filed by employer groups across the nation seeking to invalidate the ETS, and shortly thereafter a number of labor unions and employee groups began filing similar lawsuits in employee friendly jurisdictions. All of those petitions have been consolidated in and will be decided by the Sixth Circuit Court of Appeals. Before the Sixth Circuit assumed jurisdiction of the cases, the Fifth Circuit Court of Appeals, a notably employer-friendly jurisdiction (or court), granted a Motion to Stay Enforcement of the ETS, finding the ETS overbroad. Several days later, OSHA posted on its website that it was suspending enforcement of the ETS “pending further developments in the litigation.”

This morning, the Biden Administration filed an Emergency Motion asking the Sixth Circuit to Dissolve the Stay issued by the Fifth Circuit. While it is still too soon to speculate how the Sixth Circuit will rule in response to the current Motion, many clients are asking what they should do since the ETS appears to be in legal limbo.

What should employers do while the ETS is in limbo? Even though the ETS has presently been paused, employers are encouraged to continue with their efforts to implement the ETS in the event the Sixth Circuit lifts the Stay. In such event, it is presently unclear how quickly OSHA may try to enforce the December 5 deadline. In addition, it would be wise for employers to keep employees informed about the process so that if the ETS is enforced, an employer can quickly move to get into compliance.

Employers should also be aware that the current proceedings in the Sixth Circuit do not impact the Executive Order 14042 mandating vaccines for certain covered government contractors and subcontractors, the vaccine mandate from the Centers for Medicare & Medicaid Services (CMS) for healthcare employers, or any state or local vaccination mandate or testing requirements.

If you have questions about this new development or about your obligations under any vaccine mandate or testing requirements, please contact Attorney Sally Piefer or the Lindner & Marsack attorney with whom you regularly work. We will continue proving updates as we learn more about new developments and how they will impact your business.

 

 

 

LINDNER & MARSACK, S.C., ANNOUNCES 2021 SUPER LAWYER AND BEST LAWYER DESIGNATIONS

Lindner & Marsack, S.C., today announced four attorneys acknowledged by Super Lawyers magazine. Honorees include Douglas Feldman, Gary Marsack, Daniel Pedriana and Oyvind Wistrom. Feldman and Wistrom were also named as Best Lawyers by U.S. News & World Report, along with Daniel Finerty and Jonathan Swain.

“While this recognition rightly highlights the accomplishments of several individual attorneys, it also is a testament to the dedication and quality of work provided by our entire team as we help employers in Wisconsin and across the country minimize risks and navigate their toughest legal challenges,” 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.

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.

“First and foremost, we do what we do to advance the interests and success of our clients,” concluded Wistrom. “That said, it’s still an honor to see that work acknowledged and honored with the recognition of our peers and these industry-leading publications.”

OSHA’s Mandatory Vaccine Rule Paused

By Sally A. Piefer

Last week, OSHA released its mandatory vaccine emergency temporary standard (ETS), which would require employers with 100 or more employees to implement a mandatory vaccine requirement for their workers, or alternatively to give employees the choice between receiving the COVID-19 vaccine or being subject to mandatory weekly testing.

As we anticipated, a number of lawsuits were filed across the nation seeking to invalidate the ETS. One of those lawsuits was filed in the Fifth Circuit Court of Appeals, which has jurisdiction over Louisiana, Mississippi and Texas. As you might recall, the Fifth Circuit was the location where the white-collar exemption rule was litigated several years back, and has been historically known as an employer-friendly location for challenges to earlier OSHA ETS.

On Saturday, the Court granted a Motion to Stay Enforcement of the ETS, pending a decision from the Court. OSHA has until 5:00 p.m. today (Monday) to respond to the request for a permanent injunction, and the petitioners have until 5:00 p.m. on Tuesday to file a reply.

What does this mean for employers? Technically, because the Fifth Circuit only has jurisdiction over the states identified, the ETS has been temporarily halted in those states. However, similar lawsuits have been filed across the country – including several which have jurisdiction over Wisconsin. The Wisconsin Institute for Law & Liberty (WILL) challenged the OSHA ETS last week and similarly asked for the court to issue an emergency motion. In that case, OSHA has until November 12, 2021 to respond. The State of Indiana also filed a lawsuit and similarly asked for a stay, but to date no response deadline has been set in that case. Similar lawsuits are pending in the Sixth Circuit (Kentucky, Michigan, Ohio & Tennessee), the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota & South Dakota) and the Eleventh Circuit (Alabama, Florida & Georgia)

If you have questions about this new development, please contact Attorney Sally Piefer or the Lindner & Marsack attorney with whom you regularly work. We will continue providing updates as we learn more about new developments in the cases being litigated and how they will impact your business.

OSHA ISSUES EMERGENCY TEMPORARY STANDARD ON VACCINATION.

By Tyler J. Hall

On Thursday, November 4, 2021, the Biden administration, officially announced additional steps it is taking to battle the COVID-19 pandemic, and it starts with vaccinating more American workers. The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced the new emergency temporary standard (“ETS”) “to protect more than 84 million workers from the spread of the coronavirus on the job.”

Under this new temporary standard, covered employers must develop, implement, and enforce a written mandatory COVID-19 vaccination policy. Alternatively, covered employers may adopt a written policy requiring employees to either choose to be vaccinated or undergo regular testing and wear a face covering at work. Covered employers must provide up to 4 hours paid time off for workers to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects of each vaccine dose. An employer must provide information in a language and at a literacy level its employees will understand.

“Acceptable proof of vaccination status” includes: (i) record of immunization from a health care provider or pharmacy; (ii) a copy of the COVID-19 Vaccination Record Card; (iii) medical records documenting the vaccination; (iv) immunization records from a public health, state, or tribal immunization information system; or a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s). A signed and dated employee attestation is acceptable in instances when an employee is unable to produce proof of vaccination. Employees who cannot provide an acceptable form of vaccination or who won’t provide an attestation must be treated as unvaccinated. Employers must also maintain and preserve a record and roster of each employee’s vaccination status—subject of course to applicable confidentiality requirements.

The ETS covers employers with 100 or more employees. The 100 employee threshold includes all employees, regardless of location, and regardless of whether they are working remotely. While they count towards the threshold, fully remote workers and workers who work exclusively outdoors are not subject to the ETS. Employees from a staffing agency are only counted by the staffing agency, not the host employer.

Importantly, employers are not required to pay for testing or face coverings. This is designed to push more employees to get vaccinated in lieu of paying for testing. Collective bargaining agreements (CBA) may dictate who pays for testing agreements or state or local law mandates may impact whether an employer must pay for the testing and/or face coverings.

The ETS also requires employers to do the following: (1) require employees to provide prompt notice of a positive COVID-19 test or diagnosis; (2) remove COVID-19 positive employees from the workplace; (3) test non-vaccinated workers at least once every 7 days (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer); and (4) ensure unvaccinated employees wear face coverings indoors or while in a vehicle with another person for work purposes. Tests cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Employers must maintain a record of each test result provided by an employee and must prevent employees from reporting to work until a test is provided.

Employers must be prepared to provide documentation of its written policy and the aggregate number of employees vaccinated within 4 business hours of a request by OSHA, and all other records requested by OSHA must be produced by the end of the business day following the request.

According to OSHA, this ETS with cover two-thirds of the nation’s private-sector workforce. In the 26 states and 2 territories with OSHA State Plans, the ETS will also cover public sector workers employed by state and local governments, including educators and school staff. Wisconsin does not have an OSHA State Plan.  The ETS does not cover those health care employees covered by the earlier standard or federal contractors covered by the earlier executive order.  It also allows for a CBA or state/local law to place more stringent restrictions on the employers.

The ETS is effective immediately upon its publication in the Federal Register, which is scheduled for November 5, 2021. Employers must comply with most requirements within 30 days of publication. Employers must comply with testing requirements within 60 days of publication.

Another rule issued by the Centers for Medicare & Medicaid Services requires roughly 17 million health care workers to be vaccinated by the same deadline, but with no option for weekly testing in lieu of vaccination.

Employers covered by the OSHA rule can challenge it in court, and challenges are expected in the coming days. OSHA will continue to monitor the pandemic, and make changes to the ETS as necessary.

The above information provides only a summary of the highlights of the ETS. If you have questions or need assistance with policy development, please contact Attorney Tyler Hall or the Lindner & Marsack attorney with whom you regularly work. We will continue providing updates as we learn more about new directives, rules, or guidance.

NEW VACCINATION OR TESTING REQUIREMENTS FOR EMPLOYERS

By: Samantha J. Wood

Yesterday, President Biden announced new COVID-19 mandates affecting private employers with 100 or more employees, federal workers and contractors, and health care facilities.

First, it was announced that the Occupational Safety and Health Administration (“OSHA”) will develop a new Emergency Temporary Standard (“ETS”), which will mandate that all employers with 100 or more employees must require their employees to become “fully vaccinated” or undergo weekly COVID-19 testing. Employers will be required to give employees paid time off to get the vaccine or to recover from any side effects of the vaccine.  OSHA plans to publish this ETS in the coming weeks and it will take effect shortly thereafter.  Employers who do not comply risk fines up to $14,000 per violation.

In addition, President Biden has issued an Executive Order that requires all federal workers and contractors to be vaccinated, with exceptions for those with religious reasons or disabilities. Federal employees and contractors will have approximately 75 days from the date of the executive order to become fully vaccinated. This new Executive Order applies to all federal contractors and any subcontractors (at any tier) and requires contractors to comply with any guidance published by the Safer Federal Workforce Task Force. New guidance related to COVID-19 is expected from this Task Force by September 24, 2021. The Executive Order applies to any new contract and the extension or renewal of an existing contract, and does not apply to grants, certain contracts or agreements with Indian Tribes, subcontracts solely for the provision of products, employees who perform work outside the United States, or to contracts (or subcontracts) whose value is equal to or less than the simplified acquisition threshold, as that term is defined in section 2.101 of the Federal Acquisition Regulation.

President Biden also expanded the vaccine requirements for health care workers, mandating vaccinations for health care providers that accept Medicare and Medicaid funding.

Employers should keep abreast of these changes and begin preparing for the new requirements.  We will be providing continuing updates as we learn more about the new directives.

 

NEW NON-COMPETE LAW COMING TO ILLINOIS

By:       Sally A. Piefer

June 21, 2021

Non-compete and non-solicitation agreements are relatively commonplace. However, these agreements have been under increasing attack by legislatures across the country. President Biden has also expressed that one of the items on his regulatory agenda is to eliminate all non-compete agreements except for those necessary to protect trade secrets.

The Illinois legislature recently unanimously passed legislation changing the non-compete and non-solicitation agreement landscape. The Illinois Governor is expected to sign this legislation which will go into effect on January 1, 2022, and will impact agreements entered into after that date.

The Illinois legislation implements the following changes to non-compete and non-solicitation agreements:

Compensation Thresholds

The legislation voids all non-compete provisions with an employee if the employee has expected earnings below $75,000. The legislation also voids all non-solicitation provisions with an employee if the employee has expected earnings below $45,000.

The expected earnings levels include not only compensation reported on an employee’s W-2, but also elective deferrals such as employee contributions to a 401(k), FSA or HSA. The current earnings thresholds for non-competes will increase by $5,000 every 3 years through 2037 (e.g., on January 1, 2027, the earnings levels increase to $80,000). For non-solicitation provisions, the earnings levels increase by $2,500 every 3 years (e.g., $47,500 on January 1, 2027).

Adequate Consideration

The legislation requires an employer to provide adequate consideration in exchange for signing the agreement and specifically states that 2 years of employment is adequate consideration, but so is a period of employment plus additional professional or financial benefits, or merely professional or financial benefits, such as a signing bonus. Employers should ensure that the consideration being offered is specifically identified in the agreement.

Notice to Employee

Employers must give the agreement to a new employee at least 14 days before the employee starts employment. If an employer misses that window of opportunity, the employee must then be provided 14 days from receipt to sign and return. The employee can sign earlier, but cannot be forced or coerced to do so. The agreement must also advise the employee that he/she may consult with an attorney before signing. An agreement which fails to incorporate these provisions is considered illegal and invalid.

Restrictions on Enforcement

The Illinois legislature has placed several restrictions on enforcing a non-compete or non-solicit provision. For example, an employer cannot enforce a non-compete or non-solicitation clause where the employee is terminated, furloughed or laid off as a result of “business circumstances” or governmental orders relating to COVID 19 or similar circumstances—unless the agreement contains a compensation equivalent to the employee’s base salary at time of termination for the length of enforcement – minus compensation earned by the employee in replacement employment.

In addition, the legislation specifically provides that if an employee prevails in an attempt to enforce a non-compete or non-solicitation clause, the employer has to pay the employee’s reasonable attorney’s fees and costs. While the legislation does not provide a similar statutory provision for the employer, there is no restriction on incorporating such a provision into the agreement.

Attorney General Enforcement

Finally, the new legislation permits the Attorney General to conduct investigations and sue employers if there is a belief that the employer is engaging in a practice in violation of the legislation. In the event of litigation, the Attorney General can seek a temporary restraining order or preliminary injunction preventing the employer from further violations of the law, and it can recover damages, which can include a $5000 civil penalty for each violation (or $10,000 for repeat violations within a 5-year period). Each employee subject to an illegal agreement is considered a separate and distinct violation of the law.

Next Steps

Illinois is not alone. Several other states, including Arizona, Oregon, Nevada and Washington DC have also implemented new legislation in 2021 which may impact the enforceability of non-compete and non-solicitation agreements in those states. Employers with operations in multi-state locations should have their non-compete and non-solicitation agreements analyzed to determine whether these new laws will impact the enforceability of the agreements.

If you have questions about the new law, or any questions about non-compete and/or non-solicitation agreements, please contact Sally Piefer at 414-226-4818 or spiefer@lindner-marsack.com, or contact your regular Lindner & Marsack attorney.

OSHA ISSUES EMPLOYER GUIDANCE AND EMERGENCY TEMPORARY STANDARD FOR HEALTHCARE EMPLOYERS

By: Samantha J. Wood

On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) issued guidance for all employers, along with a much-anticipated Emergency Temporary Standard (“ETS”), limiting the ETS to healthcare workers.

Emergency Temporary Standard for Healthcare Workers

After much consideration, OSHA determined that an emergency standard was necessary because existing standards and regulations, and the OSH Act’s General Duty Clause were inadequate to address the COVID-19 hazard for healthcare workers.  OSHA determined that these workers face the highest risk of COVID-19 exposure because people with suspected or confirmed COVID-19 are reasonably expected to be present in the workplace.

The ETS is limited to workers who provide healthcare services and healthcare support services, including employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated.

This standard requires healthcare employers to comply with several provisions, including:

  1. Developing and implementing a COVID-19 plan that includes a designated workplace safety coordinator, a workplace specific hazard assessment, and policies and procedures to minimize the risk of COVID-19 exposure;
  1. Limiting and monitoring points of entry to settings where direct patient care is provided; screening and triaging patients, clients and other visitors and non-employees; and implementing patient management strategies;
  1. Providing and ensuring employee wear a facemask when indoors and when occupying a vehicle with others for work purposes;
  1. Continuing physical distancing, installing physical barriers, ensuring proper ventilation, and cleaning and disinfecting surfaces and equipment in accordance with CDC guidelines;
  1. Screening employees before each workday and shift and requiring employees to promptly notify the employer if the employee is COVID-19 positive, is suspected of having COVID-19, or is experiencing COVID-related symptoms;
  1. Providing reasonable time and paid leave for vaccinations and vaccine side effects;
  1. Implementing training to ensure employees understand COVID-19 transmission and situations in the workplace that could result in infection;
  1. Establishing a COVID-19 log of all employee instances of COVID-19 without regard to occupational exposure and following requirements for making records available to employees/representatives (if more than 10 employees); and
  1. Reporting work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.

The ETS exempts fully vaccinated workers from masking, distancing, and barrier requirements when in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.

Covered employers must comply with all ETS provisions within 14 days of its publication in the Federal Register, with the exception of the requirements related to physical barriers, ventilation and training.  Employers must comply with physical barriers, ventilation and training requirements within 30 days of the ETS’s publication.

OSHA Guidance for All Employers

At the same time OSHA released its ETS, it also issued updated COVID-19 guidance for all employers on mitigating and preventing the spread of COVID-19 in the workplace.  OSHA expressly acknowledged and adopted the CDC’s statement that fully-vaccinated individuals can resume activities without wearing masks or physically distancing, and stated that “most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace or well-defined portions of a workplace where all employees are fully vaccinated.”

However, OSHA’s guidance reminds employers that it still has an obligation to protect unvaccinated and otherwise at-risk employees, pursuant to OSH Act’s General Duty Clause.  In order to protect unvaccinated and other at-risk employees, OSHA recommends that employers implement multiple layers of control, such as:

  1. Encouraging vaccinations and taking steps to make it easier for workers to get vaccinated;
  1. Instructing unvaccinated workers who have had close contact with someone who tested positive, and all workers who are experiencing COVID-related symptoms or who are infected with COVID-19 to stay home;
  1. Implementing social distancing for unvaccinated and otherwise at-risk workers in communal work areas and limiting the number of unvaccinated or at-risk workers in one place at any given time (such as by implementing flexible work hours, telework, or other flexible meeting and travel options);
  1. Implementing transparent shields or other solid barriers at fixed workstations where unvaccinated or otherwise at-risk workers are not able to remain at least six feet apart from others;
  1. Requiring unvaccinated or at-risk employees to continue to wear face coverings, providing face coverings to employees, supporting all workers in continuing face covering use if they choose, and recommending or requiring unvaccinated customers or visitors to wear face coverings;
  1. Educating and training managers, employees, and other contractors on COVID-19 policies and procedures;
  1. Improving air supply/ventilation procedures;
  1. Performing cleaning and disinfection procedures;
  1. Recording and reporting COVID-19 infections and deaths (excluding employees experiencing adverse side effects of the COVID-19 vaccination); and
  1. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19 hazards.

In high-risk workplaces, such as manufacturing, meat and poultry processing, and high-volume retail and grocery settings, where there is a heightened risk of COVID-19 exposure due to close or prolonged contact, OSHA further recommends:

  1. Implementing staggered break times to avoid congregations of unvaccinated or otherwise at-risk workers;
  1. Staggering workers’ arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk employees; and
  1. Providing visual floor or sign markings as a reminder to maintain six feet of distance.

In determining whether to modify policies or procedures, employers should carefully consider the above recommendations, as well as CDC guidance, and other state and local requirements to ensure continued legal compliance.

PUBLIC SAFETY OFFICERS CAN NOW BRING A CLAIM FOR PTSD WITHOUT HAVING TO PROVE EXTRAORDINARY STRESS

By: Matthew Kurudza

Assembly Bill 11 was passed in the Senate on February 16, 2021 and presented to Governor Evers on April 22, 2021.  This bill, now known as 2021 Wisconsin Act 29 (Act), was signed by Governor Evers on April 27, 2021.  This bipartisan bill was passed to allow public safety officers – including law enforcement and firefighters – who have been diagnosed with post-traumatic stress disorder (PTSD) under certain conditions to receive worker’s compensation benefits without having to prove that the injury was caused by extraordinary stress.

Since the mid-1970’s, Wisconsin has recognized non-traumatic mental injuries in worker’s compensation.  Specifically, in the School District No. 1 v. DILHR  decision, the Wisconsin Supreme Court established the “extraordinary stress” standard for compensability.  This decision provided that a “mental injury non-traumatically caused must have resulted from a situation of greater dimensions than the day-to-day emotional strain and tension which all employees must experience.”  This standard was clarified in the Spink v. Farm Credit Services decision, where the court found “the amount of stress in the applicant’s occupation and field … served as the benchmark for comparison with the stress that the applicant claims entitles him or her to worker’s compensation.”  Later, the Jenson v. Employer’s Mutual Court further clarified the test stating the stress was “measured not by its effects on the victim, but by the unusual nature of the occupational stress itself.”  These onerous standards often prevented employees in high-stress jobs – such as public safety officers, from prevailing on a claim for PTSD.

The Act itself makes a few important changes, most notably by relaxing the existing “extraordinary stress” standard discussed above, along with setting caps on liability.  These changes are discussed in detail below:

First, the Act allows payment of worker’s compensation benefits if a public safety officer, such as law enforcement or firefighter, is diagnosed with PTSD by a licensed psychologist or psychiatrist, and the mental injury is not accompanied by a physical injury if proven by a preponderance of the evidence and the mental injury is not a result of a result of a good faith employment action by the employer. Wis. Stat §102.17(9)(b).

Second, the Act limits the liability for treatment of such injuries and claims to no more than 32 weeks after the injury is first reported. Wis. Stat §102.42(1p).

Third, it restricts the ability to claim compensation for such injuries and diagnoses to three times within an individual’s lifetime, regardless of a change in employment status. Wis. Stat §102.17(9)(c).

In short, this legislation eases the process of claiming a mental injury and obtaining covered treatment, and expenses for public safety officers by altering the previous standards for compensable non-traumatic mental injuries.

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

Current Trends & Treatment in Worker’s Compensation

Lindner & Marsack’s worker’s compensation defense practice is well recognized as an industry leader in providing work injury defense services to many of Wisconsin’s largest employers and insurance carriers.

Chelsie Springstead, a Shareholder and member of the Firm’s highly regarded work injury defense team, is a presenter in the first episode of an educational video podcast series entitled “A Medical and Legal Analysis of COVID-19: Addressing Issues Surrounding Causation, Care and Courses of Action” on Thursday, April 29, 2021, at 12:00 p.m. CST.

If you are interested in attending this event, please send an email to info@crawfordevaluationgroup.com. This is a complimentary event!

Click here for more information. You will receive a link to view the broadcast closer to the date.

WISCONSIN SUPREME COURT STRIKES DOWN STATEWIDE MASK MANDATE

By: Samantha J. Wood and Sally A. Piefer

On Wednesday, the Wisconsin Supreme Court struck down Wisconsin’s statewide mask mandate, holding that Governor Evers exceeded his legal authority by issuing multiple emergency orders under Wis. Stat. § 323.10.   The court emphasized that the question was “not whether the Governor acted wisely; it [was] whether he acted lawfully.”  Section 323.10 specifies that no state of emergency may last longer than 60 days unless “the state of emergency is extended by joint resolution of the legislature.”  Absent legislative approval, the Governor is precluded from proclaiming repeated states of emergency.  Because Governor Evers extended the orders declaring a state of emergency on several occasions without legislative approval, his extensions were and are invalid.

Although Wisconsin’s statewide mask mandate has been struck down by virtue of the Supreme Court’s decision, employers must keep several other laws in mind in determining their next steps:

  1. Several municipalities have issued their own mask mandates, including Dane County, Milwaukee County, the City of Milwaukee, Wauwatosa and various other townships and villages. These mandates are enforceable if enacted by the municipality’s governing body. Employers should check with their local municipality and county before eliminating a mask requirement.
  1. Employers still maintain responsibilities under OSHA’s “General Duty” clause. OSHA’s General Duty clause requires an employer to furnish to its employees employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm.  Employers can be cited for a violation of the General Duty clause if a recognized hazard exists in the workplace and the employer does not take reasonable steps to prevent or abate the hazard. OSHA prepared guidance in March 2021 that encourages employers to require face coverings. That guidance can be found here.
  1. Employees may be eligible to receive worker’s compensation benefits as a result of contracting COVID-19 in the workplace if the employee can establish that the employee contracted the virus while performing services growing out of and incidental to that employment.

In determining whether to lift an employment mask requirement or policy, employers should consider the above-referenced legal considerations, as well as analyze the risks in their workplace, other sanitization or safety procedures in place, and whether, if a mask requirement will remain in place, the employer will consistently enforce a mask policy and issue corrective action to employees who violate the policy.