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The employer’s guide to Wisconsin’s “Safer at Home Order”

As most Wisconsin employers are aware, Governor Evers’ Emergency Order #12, “Safer at Home Order” (the Order) went into effect at 8 a.m. today, Wednesday, March 25, 2020. The order distinguishes non-essential businesses, which must generally cease business activity except for remote or work-from-home arrangements, from essential businesses, which may continue their operations so long as they comply with Wisconsin Department of Health Services (DHS) guidelines for businesses.

The first step for any Wisconsin employer is analyzing whether your business qualifies as an essential business. Under either determination, your workforce will be impacted.

My company is an essential business. Now what?

Communicate with your employees, vendors and suppliers

Once you make the determination that you are an essential business, inform your workforce as soon as possible. Keep in mind that in many situations, simply informing employees that you are staying open as an essential business will not be enough. It’s wise to explain exactly how you expect the business to continue operating while the Order is in effect. For some, that may be business as usual, but for others, reduced hours, rotating shifts or other forms of temporary downsizing may need to be implemented. Employers’ needs may shift over time, requiring updated communication to employees, so be sure to reference in any communication that the situation is fluid and you will keep them updated as needed.

Because vendors and suppliers may themselves qualify as essential businesses based on their relationship to your business, it is also important to communicate your plans to your business partners so that they may implement their own business continuity plans.

Develop a plan to address employees who are unable or refuse to come to work

Even if your company is an essential business, you will likely have employees who are either unable to come to work, due to illness and/or caregiver responsibilities, or are uncomfortable doing so given the increased risk of exposure to the 2019 novel coronavirus (COVID-19).

As an initial matter, you will need to determine whether the employee qualifies for any protected form of federal or state leave. Under the new Families First Coronavirus Response Act (FFCRA), all employers with fewer than 500 employees will be obligated to provide paid sick leave to employees eligible for certain COVID-19-related reasons. Those reasons may include, but are not limited to, caring for a child whose school has been closed.

Recently published fact sheet and frequently asked questions (FAQ) documents from the U.S. Department of Labor (DOL) on the FFCRA are now available. The Americans with Disabilities Act (ADA) and Family Medical Leave Act (FMLA) may also apply when an employee is dealing with a COVID-19 diagnosis or caring for a family member afflicted by COVID-19.

When an employee is unable or unwilling to work and he or she is not entitled to protected leave, employers have a variety of options, including allowing the employee to work remotely or in a role with limited exposure to others, to use his or her accrued paid time off, or to take unpaid leave.

Employers also retain the right to appeal to employees to reconsider their stance, and/or require critical employees to report to work or face job consequences up to and including termination. However, to avoid potential claims it may be advisable to balance business and employee needs, understanding that employers may not get the benefit of the doubt when disciplining or terminating employees under these trying times.

Consider employee rewards

Rewarding employees who do come to work is the most effective way to ensure a stable workforce while the Order is in effect. Such rewards may be in the form of increased pay or hours, bonuses or expanded benefits (e.g. extra paid time off), or workplace perks such as free meals, etc. Employers may give credit to employees who continue to work during annual reviews and for purposes of future raises, promotions, etc.

Create a protocol to ensure that employees are able to commute to work uninterrupted

The Order does not require that employees carry documentation with them to certify that they are traveling to work at an essential business. Nonetheless, many Wisconsin employers are offering documentation to employees to help ensure that if they are stopped on their way to work they are not sent home by law enforcement. You may also choose, but are not required, to contact local officials or law enforcement to let them know that the company is an essential business and is continuing operations while the Order is in effect.

My company is not represented by the Order’s descriptions. Now what?

Consider submitting a Business Designation Inquiry to WEDC

If you believe your business is essential, but it is not listed as such in the Order, Section 13.z of the Order provides a mechanism for businesses to apply to be designated as essential by the Wisconsin Economic Development Corporation (WEDC). Earlier today, Governor Evers also issued a FAQ document regarding the Order which encourages businesses to consult the WEDC if the business believes it is essential.

The application process is completed exclusively online by submitting the Essential Business Designation Inquiry application found on the WEDC’s website. Businesses are required to provide their contact information as well as a description of why the business is essential. The WEDC will then provide a determination on whether the business is considered essential and that determination will be final.

While the WEDC’s process provides the benefit of certainty of a business’ status, consider consulting with legal counsel before taking this next step to confirm if such an inquiry is necessary.

My company is not an essential business. Now what?

You must close your physical business operations

Although your physical business operations must close, you can still require employees to work if they can do so remotely. For remote employees, you must avoid meetings in person and look to technology, such as virtual meetings and teleconferences, to facilitate those meetings. If you have any non-exempt employees who will work remotely, you must ensure you have appropriate procedures in place for them to track all of their time spent working.

You may perform minimum basic operations

The Order provides that non-essential businesses may carry out certain minimum functions, including the minimum necessary activities to:

  • Maintain the value of their inventory

  • Preserve the condition of the business’ physical plant or equipment

  • Ensure security

  • Process payroll and employee benefits

  • Facilitate employees of the business to continue working remotely

Importantly, if you will continue to have employees work to carry out minimum basic operations, you must comply with the DHS’ guidelines for businesses. Additionally, you must ensure that such employees practice social distancing requirements, which the Order defines as:

  • Maintaining a social distancing of 6 feet between people

  • Washing hands with soap and water for at least 20 seconds as frequently as possible or using hand sanitizer

  • Coughing or sneezing into the sleeve or elbow, not hands

  • Regularly cleaning high-touch surfaces

  • Not shaking hands

  • Following all other public recommendations issued by the DHS and the U.S. Centers for Disease Control and Prevention (CDC).

These expectations should be communicated to the employees who will perform the minimum functions required.

Evaluate other tools that are available to your business to reduce costs

Non-essential businesses do have options to help manage their businesses and employees during the coronavirus pandemic. Learn more about them in our recent post, COVID-19: The employer’s toolbox.

Copyright © 2020 Godfrey & Kahn S.C.National Law Review, Volume X, Number 85

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About this Author

Scott LeBlanc, Labor & Employment Attorney with Godfrey Kahn
Member

Scott LeBlanc is an associate in the firm's Labor, Employment & Immigration and Health Care Practice Groups. Scott represents a wide range of employers, including health systems, hospitals, physician groups, and other health care related organizations, with respect to employment law and health care regulatory issues.

Scott assists employers of all types during the hiring process, through employment terminations, and at all points in-between. In addition to advising clients on day-to-day employment issues such as...

414-287-9614
Christine McLaughlin, Labor Attorney, Godfrey Kahn Law Firm
Shareholder

Christine Liu McLaughlin is a shareholder and chair of the Labor & Employment Law Practice Group in the Milwaukee office. Christine also is the immediate-past chair of the firm's Women's Leadership Forum and chair of the Diversity Committee.

Christine provides counsel on a wide variety of employment and labor issues ranging from interpretation and application of federal and state employment laws to specialized employee transition matters in complex business transactions.

Christine advises her clients on general employee hiring, discipline and termination issues; family and medical leave issues; federal and state disability discrimination issues; federal and state civil rights and fair employment issues; sexual and other unlawful harassment issues; workplace violence issues; and contingent workforce issues. Christine routinely defends discrimination claims that have been filed with the State of Wisconsin Equal Rights Division and the Equal Employment Opportunity Commission. Christine also has extensive experience in evaluating and drafting federal and Wisconsin state affirmative action plans, as well as advising on compliance reviews.

414.287.9232
Katheryn A. Mills, Godfrey Kahn, Labor Litigation Lawyer, Employment Immigration Attorney
Associate

Katie Mills is an associate in the firm’s Milwaukee office and a member of the Labor, Employment & Immigration Practice Group.

While attending law school, Katie was an intern at Marquette University Office of the General Counsel and served as a summer law clerk for the Wisconsin Public Service Commission conducting legal research. She also was a research assistant for Dean Matthew Parlow, Marquette Law School Associate Dean for Academic Affairs and Professor of Law.

Also during law school, Katie was a Comment Editor...

414.287.9213