Goldstein Law Group, S.C. is a law firm that specializes
in labor and employment law, business litigation
and legal, business and workplace solutions

 

Looking Ahead

5-11-20

Restart

As many of you contemplate reopening, all the talk is of having procedures in place to keep your employees and customers safe (and reassure them that you are doing so). While we await official guidance from the CDC, the CDC has a variety of resources available online. OSHA has issued its own guidance, and the Wisconsin Economic Development Corporation (WEDC) has published industry-specific guidance.

But nothing is quite as instructive as real life experiences. Here are some of the issues we have encountered over the past eight weeks from essential businesses operating during that period, with suggestions about how to approach each.

What should we keep in mind when recalling employees?

  • All employees back at once, or in phases
  • Staggered shifts
    • Potential adjustments to compensation for those returning, and those not returning
  • Establish "office hours" for employees to contact you with any non-urgent questions or concerns.
  • Utility, availability of protective gear (e.g. masks, face shields, gloves, etc.)
  • Decisions regarding those who have been working remotely, and conceivably could continue to do so
  • Messaging to those returning, those not returning, and those working in different locations, different shifts, etc.
  • Messaging regarding temporary modifications to sick leave policy, and the balance between the expectation that employees come to work and a clear statement that employees will not be penalized for staying home with CoV symptoms (and are, in fact, encouraged to do so)
    • Answering ADA accommodation questions
    • Guarding against Worker’s Compensation and OSHA exposure
  • Interplay with PPP and FFCRA
  • Identifying point-persons for inquiries, cleaning and sanitizing, and CoV responsiveness
  • Is it reassuring to employees to witness cleaning and disinfecting (such that we undertake during business hours), or unnerving (such that we undertake after hours)?
  • Be prepared to answer questions about what protective measures are not being undertaken, and why; and what happens if an employee gets sick.
  • Plan also for the potential consequences – both legal (OSHA and Worker’s Compensation) and PR – of worker and customer exposure if social distancing and other measures aren’t followed by employees or customers.

Questions?

Call 414-446-8800, or email us at adam@goldsteinsc.com for more information or to schedule a consultation.

If you have been operating remotely for the last several weeks, perhaps you have learned a few things that you want to continue going forward. Also, request feedback from employees before defaulting to past practices.

How should we respond to an employee who questions whether we have proper protocols in order?

Employees are likely anxious about returning to the workplace. Have all systems in place, and be clear regarding what you have done and why, and that you are knowledgeable of the guidance available. Also be clear regarding what is expected of them. This includes:

  • Employee health: temperature screening; surveying symptoms; self-reporting.
  • Cleaning plans: communal areas; high-touch areas; personal spaces; individual hygiene.
  • Social distancing: rearranging workspaces; how meetings will take place; protective gear.

What should we do if an employee is anxious about returning to the workplace?

Get a sense for the precise nature of their concern. For example, is the issue employee safety, childcare, their desire to continue working from home, or perhaps their own underlying health conditions?

If the latter, and consistent with the requirements of the ADA, ask the employee for documentation from their physician as to what sort of accommodation they might require (i.e. anything short of continued work from home?). Contact legal counsel regarding what you receive back. An accommodation may not be required if it creates an “undue hardship” for the employer.

If you have your own concerns about an employee whose health might make the person uniquely susceptible to CoV, and yet the employee has not raised the issue, it is not necessarily for you to "call the question." At the same time, this does create exposure – for him or her, and for the company. In short, you are not allowed to exclude the employee from the workplace solely because of a disability unless (1) the employee poses a "direct threat" to him or herself and (2) this cannot be eliminated/reduced by reasonable accommodation. Email or call Mark (414-446-8800) with any questions.

What if an employee turns to social media regarding what we are doing, or not doing?

This will happen, and triggers issues relative to free speech and on and off-duty conduct (e.g. sharing pictures of the workspace v. a Facebook rant). Some of this is legally protected, and some is not. Email or call Mark (414-446-8800) with any questions.

What are my obligations under Wisconsin’s Safer at Home Order?

Review executive orders and other official guidance that may apply to your business. In Wisconsin, this includes Emergency Order #28 (the second Safer at Home Order, set to expire on May 26, 2020), Emergency Order #31 (the Badger Bounce Back phased reopening plan), and Emergency Order #34 (Interim Order to Turn the Dial).

Keep in mind that the obligations, plans, and other guidance contained in these orders are subject to change, through new orders and/or court rulings.

What if an employee tests positive for CoV?

CoV+ employees and those with symptoms such as fever, cough, or shortness of breath should be immediately sent home and directed to follow CDC-recommended steps. This includes:

  • Immediate, comprehensive cleaning, disinfection, and ventilation measures, especially as to commonly used spaces and surfaces. Consider hiring third-party professionals.
  • Internal track and trace of others who may have been in close contact with the affected employee.
  • Contact legal counsel.
  • Inform others of their potential exposure, but not disclosing the employee’s name or any other personally identifiable information. Consider directing these employees to stay home, self-monitor for symptoms, and follow CDC-recommended steps if symptoms develop. FFCRA/EPSL leave may apply.
  • Consider whether to increase other mitigation measures such as the use of PPE, screening measures, and physical barriers.
  • Consider whether you must record or report the infection to OSHA and/or your Worker's Compensation carrier (and, in this regard, consider if you have any reason to believe that the infection may have been contracted at work).

Paycheck Protection Program

Lots of questions about PPP. Long-story short, the program has been found to have nuances and flaws that continue to trip-up business owners. Additional guidance from the SBA is expected this week. In the interim, here are two issues we have spent some time on as of late:

Q: I keep hearing of businesses repaying their PPP loans, or being pressured to do so (and of a May 14, 2020 deadline)? How do I know if I need to repay the loan?

A: You certified (in your application) that your PPP loan request was “necessary to support the ongoing operations of the Applicant.” So what was the status of your business activities at the time of your application? Were orders down, or forecasted to be so? What were your suppliers doing or saying? What was the word in the industry? Were you contemplating layoffs? What was your ability to access other sources of liquidity?

At the time of this publication, SBA has indicated that it will audit loans over $2 million and promised further guidance before May 14. Email or call Mark (414-446-8800) with any questions.

Q: How do we calculate our anticipated loan forgiveness?

A: While we have received some additional guidance over the past weeks, there is still little guidance on various outstanding (and impactful) questions. For instance, we now know that an employee who declined a good faith written offer of rehire does not count against the borrower’s forgivable loan. But we do not yet have clarity regarding payments for services incurred (or partially incurred) before loan origination or pre-payment for services after the eight week PPP period has concluded.

For now, keep a clear record of how precisely the loan dollars are spent. Some borrowers are creating a separate account for handling such funds. Keep an eye on this space for further guidance, and email or call Mark (414-446-8800) with any questions.

Wisconsin’s Work-Share Program

Wisconsin Act 185, enacted in April, modifies the Wisconsin Work-Share Program. The Program is intended as an alternative to laying off employees—instead, you reduce the work hours of a group of employees. Employees with reduced work hours are eligible to receive unemployment benefits (pro-rated based on work reduction). The Act significantly relaxes the Program eligibility requirements, making the option perhaps more attractive than in the past. For example:

  • The minimum number of employees for the program is now two (down from 20)
  • Employees working more than 32 hours and/or earning more than $500 may still be entitled to Work-Share benefits.
  • Full-time, part-time, salaried and exempt employees can now participate
  • Work reduction of 10-60% (previously a 50% maximum)

Perhaps most importantly, those eligible for benefits are also eligible for the Federal Pandemic Unemployment Compensation ($600/week) through July 25, 2020.

DWD uses the following examples to demonstrate benefit payments:

Full-Time Employee A works 40 hours per week and earns $16.00 per hour and is otherwise eligible for benefits

  • Weekly Benefit Rate = $370.00
  • 20% reduction in hours = 8 hours for a total of 32 hours worked
  • $370 x .20 = weekly benefit of $74.00 under Work-Share Program
  • $600 weekly benefit under PUA
  • $512 (from work) + $74 (Work-Share) + $600 (PUA) = $1,186

Part-Time Employee B works 35 hours per week and earns $14.00 per hour and is otherwise eligible for benefits

  • Weekly Benefit Rate = $260.00
  • 15% reduction in hours = 5 hours for a total of 30 hours worked
  • $260 x .15 = weekly benefit of $39.00 under Work-Share Program
  • $600 weekly benefit under PUA
  • $420 (from work) + $39 (Work-Share) + $600 (PUA) = $1,059

Work-Share Program plans do require DWD approval, but you may now submit a plan by email. Employees would still file an application and weekly certifications. Review the ERD’s fact sheets for employers and employees for more information and application instructions.

Please note: This page contains general information and should not be construed as legal advice. Seek legal counsel for analysis and advice tailored to your particular circumstances.