By Attorney Amanda N. (Follett) Sacks, Schloemer Law Firm, S.C.
Wisconsin employers should be evaluating their COVID-19 policies on a regular basis to stay ahead of potential legal issues and business interruptions. Employers should re-evaluate their return to work policies in light of current federal guidelines and Wisconsin laws on quarantine, isolation, masks, vaccinations, and accommodations and exemptions, in light of business needs and concerns.
In this blog, we’ll provide a brief overview of current guidelines as of today. Note, guidelines and laws change frequently, so make sure to consult with your attorney as you review your policies.
If you haven’t reviewed your policies since they were implemented, it’s definitely time to review those policies. A lot has changed since March of 2020, and many policies were put into place under pressure early last spring. Employers should review if policies still make sense, or if it is time to make changes.
*Note, this article does not address federal workers, health care workers, or every individual situation. Those types of workers are subject to different requirement and recommendations.
What are the legal requirements for private employers related to COVID19 and employee safety?
Private employers must comply with OSHA requirements (discussed below). There may be further requirements for larger employers under OSHA in the near future, but so far there have been no further developments.
On the other hand, CDC recommendations are just that – recommendations. They are not legally binding on employers. However, employers can be held liable for reckless or wanton conduct or intentional misconduct, so completely ignoring CDC recommendations could be a basis for liability. There is generally immunity for COVID19 related lawsuits for Wisconsin employers (also discussed more fully below). A complete disregard for CDC recommendations could also run afoul of OSHA requirements to provide a safe workplace.
Larger private employers will also need to evaluate COVID19 related leave requests in light of FMLA.
Even if not subject to FMLA, smaller employers should review their current leave policies. Note, tax credits expired on 9/30/2021, so employers should re-evaluate their policies now, see Tax Credits for Paid Leave Under the American Rescue Plan Act of 2021 for Leave After March 31, 2021.
Can Wisconsin employers be liable for COVID19 related lawsuits?
Businesses, municipalities, and non-profits are immune from civil COVID-19 litigation, under Section 8 of 2021 Act 4, signed into law by Governor Tony Evers on February 26, 2021.
The law protects business from “civil liability for the death of or injury to any individual or damages caused by an act or omission resulting in or relating to exposure, directly or indirectly, to the novel coronavirus identified as SARS−CoV−2 or COVID−19 in the course of or through the performance or provision of the entity’s functions or services.”
Exception: There is no immunity if the act or omission involves reckless or wanton conduct or intentional misconduct.
For more information, see our previous blog on this topic: Wisconsin Passes Law Shielding Businesses from COVID-19 Lawsuits.
What are the safety standards for public employers?
Wisconsin Statute Section 101.055 provides that public employees have a right to a safe work environment. Wisconsin had adopted OSHA standard in determining what is a safe work environment.
What does OSHA require?
OSHA requires all employers, regardless of size, to provide a safe workplace.
More specifically, OSHA’s ‘general-duty clause’ requires employers to maintain employments and places of employment that are safe for all employees.
Wisconsin’s Department of Health Services (DHS) is the lead Wisconsin agency on COVID-19, and their website is a great resource for current guidelines.
Currently, OSHA has not provided requirements (except for healthcare workers and other specific situations), other than to recommend safety practices such as masks, vaccination, sanitation, etc. Current guidance can be found on their website: Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace
OSHA also notes that requiring masks in certain environments or while performing certain activities can also pose a risk, so masks should not automatically be required in all situations.
(Note, as a reminder, this article does not address health care workers, who will be subject to different requirements and recommendations.)
White House Directive on Vaccinations and Testing
On 9/8/2021, President Biden directed OSHA to develop an Emergency Temporary Standard. OSHA is looking at requiring covered employers with 100 or more employees to ensure that either the workforce is fully vaccinated or subject to weekly testing.
We are still waiting for the Standard. When OSHA issues the Standard, we can expect that there would be litigation to challenge, so the implementation—if it occurs depending on how matters develop and litigation—would at a minimum likely be delayed.
In addition, it is still unclear who would pay for testing, and it is unclear if employees would be paid when they are getting tested. These are significant issues that will need to be addressed.
Can Employers ask about Vaccination Status?
Yes, but employers should proceed with caution.
An employer can ask about vaccination status. Vaccination status is an important factor in determining whether an employee who was in ‘close contact’ can return to work.
Employers should keep any medical facts confidential.
In addition, employers should be very careful to not ask for further information about why an employee may not have been vaccinated, as doing so can turn the conversation into a disability-related inquiry. The EEOC has further guidance on this topic if needed.
Can employers legally require Vaccinations at Work, Subject to Accommodations?
As an initial note, requiring vaccinations is extremely uncommon, except in the health care setting. Under current law, an employer can require vaccinations, but should be very cautious in doing so, both for legal and business reasons.
If an employer does decide to require vaccinations, the employer must offer accommodations.
If an employee identifies medical conditions that prevent vaccination, it can potentially trigger several laws.
For Wisconsin employers, the Wisconsin Fair Employment Act (WFEA) is triggered. WFEA requirements are similar to the ADA.
The ADA may also be triggered. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. The ADA’s nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules.
For certain employers (such as municipalities that receive federal funds), Section 504 of the Rehabilitation Act is triggered, which incorporates standards from the Americans with Disabilities Act.
The ADA does allow employers to adopt mandatory vaccination programs, but exemptions must be provided in certain circumstances.
If an employee raises a medical exemption, the employer could simply grant the exemption. It is generally recommended, however, that an employer develop a policy to evaluate requests, for example, providing the employee with a standard form for their physician to complete.
The employer must review the medical documentation and decide whether to grant an exemption from vaccination. The employer may deny the accommodation if it would impose an “undue hardship” on the employer’s work.
“Undue hardship” is an action requiring significant difficulty or expense when considered in light of a number of factors, such as the nature and cost of accommodations in relation to the size, resources, nature, and structure of the employer’s operation.
Medical accommodations could include: remote work, social distancing, testing, masks, or a hybrid model.
If an employee worked remotely during the pandemic, the employer is not required to permit them to go back to working remotely.
If an employee identifies a sincerely-held religious belief that prevents vaccination, this triggers an analysis under Title VII of the Civil Rights Act of 1964.
Employers must proceed very carefully if a religious exemption is raised. The EEOC has issued guidance that an employer should generally assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief.
An employer may question an employee about the sincerity of religious beliefs if the employer has an objective basis to do so. For example, an employer may question the sincerity if: the employee has acted inconsistent with the claimed belief, if the employee seeks an exemption that is likely being sought for nonreligious reasons, questionable timing, or the employer thinks the employee wants an exception for non-religious reasons.
If an employer has a factual basis to question the sincerity of a religious belief, the employer may ask the employee about the last time the employee was vaccinated and why that is different. The employer must also ask what specific religious beliefs conflict with COVID19 vaccinations.
An employer may deny an exemption if it would impose an “undue hardship”. The standard for “undue hardship” is different for medical versus religious exemptions. For religious exemptions, “undue hardship” is an inconvenience greater than a ‘de minimis cost’. In evaluating whether an “undue hardship” exists, factors include: accommodation cost, if accommodation decreases workplace efficiency, if accommodation infringes on other employees’ rights, if accommodation results in other employees doing more than their share of hazardous or burdensome work, or if the proposed accommodation conflicts with another law or regulation or compromises workplace safety.
A company should consider implementing a response plan or other checklist to outline how it addresses COVID19 and other risk in the office.
A company may find it useful to survey employees about their thoughts on returning to work and risk tolerance.
Policies should consider addressing:
- Remote, in-office, or hybrid workplace
- Configuration of workplace setup
- Compliance with Wisconsin and local orders and guidance
- Risk mitigation, e.g.:
- Social distancing
- Vaccination (including medical and religious exemptions)
- COVID19 Testing (and who pays for it)
- Confidentiality policies
- Time off & Paid leave
Originally published: November 1, 2021.
More Important Reading
- Wisconsin Passes Law Shielding Businesses from COVID-19 Lawsuits
- Transferring the Business to the Next Generation: 7 Initial Questions to Ask Yourself to Start the Process
- Transferring the Business to the Next Generation: 13 Questions to Discuss with your Children to Avoid a Failed Succession Plan
- Transferring the Business to the Next Generation: A Blueprint for Success
- Avoiding Lawsuits under the Federal Labor Standards Act (FLSA): Overtime Pay & Rise of Class Action Lawsuits
Disclaimer: The information contained in this post is for general informational purposes only and is not legal advice. Due to the rapidly changing nature of law, Schloemer Law Firm makes no warranty or guarantee concerning the accuracy or completeness of this content. You should consult with an attorney to review the current status of the law and how it applies to your unique circumstances before deciding to take—or refrain from taking—any action. If you need legal guidance, please contact us at 262-334-3471 or [email protected].